Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document: (a) each Loan Party irrevocably and unconditionally undertakes to pay to the Collateral Agent as an independent and separate creditor an amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing by such Loan Party to a Secured Party under or in connection with the Loan Documents as and when the same fall due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”); (b) the Collateral Agent shall have its own independent right to claim performance of the Parallel Obligations (including, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect of any kind of insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors; (c) the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment; (d) notwithstanding clauses (b) and (c) above: (i) the Parallel Obligations shall be decreased to the extent the Collateral Agent receives (and retains) and applies any payment against the discharge of its Parallel Obligations to the Collateral Agent and the Original Obligations shall be decreased to the same extent; (ii) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge of the Parallel Obligations owing by it to the Collateral Agent; and (iii) if any Original Obligation is subject to any limitations under the Loan Documents, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation; (e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations; (f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party under this Section 9.24; (g) each Loan Party agrees that: (i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and (ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and (h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral Agent.
Appears in 3 contracts
Sources: Credit Agreement (Mallinckrodt PLC), Superpriority Senior Secured Debtor in Possession Credit Agreement (Mallinckrodt PLC), Credit Agreement (Mallinckrodt PLC)
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or Notwithstanding any other jurisdiction in which an effective Lien cannot be granted in favor provision of this Agreement, the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Loan Party Parties hereby irrevocably and unconditionally undertakes undertake to pay to the Collateral Agent Administrative Agent, as an independent creditor in its own right and separate creditor an not as representative of the other Secured Parties, sums equal to and in the currency of each amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing payable by such Loan Party to a Secured Party Parties under or in connection with the Loan Documents as and when the same fall that amount falls due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a relevant Loan Document or as a result would have fallen due but for any discharge resulting from failure of invalidityanother Secured Party to take appropriate steps, illegalityin insolvency proceedings affecting such Loan Party, or unenforceability of a Loan Document to preserve its entitlement to be paid that amount (the “Original ObligationsParallel Debt”);
(b) the Collateral . The Administrative Agent shall have its own independent right to claim performance demand payment of the Parallel Obligations (includingamounts payable by each Loan Party under this Section 12.28, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect irrespective of any kind discharge of insolvency proceedings) and such Loan Party’s obligation to pay those amounts to the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;
(c) the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the other Secured Parties shall have an independent right resulting from failure by them to demand payment;
(d) notwithstanding clauses (b) take appropriate steps, in insolvency proceedings affecting such Loan Party, to preserve their entitlement to be paid those amounts. Any amount due and (c) above:
(i) payable by a Loan Party to the Parallel Obligations Administrative Agent under this Section 12.28 shall be decreased to the extent that the Collateral Agent receives other Secured Parties have received (and retainsare able to retain) payment in full of the corresponding amount under the other provisions of the Loan Documents and applies any payment against the discharge of its Parallel Obligations amount due and payable by a Loan Party to the Collateral Agent and the Original Obligations other Secured Parties under those provisions shall be decreased to the same extent;
extent that the Administrative Agent has received (iiand is able to retain) payment in full of the corresponding amount under this Section 12.28. The rights of the Secured Parties (other than the Administrative Agent) to receive payment of amounts payable by a each Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge of the Parallel Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations under the Loan DocumentsDocuments are several and are separate and independent from, then and without prejudice to, the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor rights of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have Administrative Agent to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party receive payment under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral Agent12.28.
Appears in 3 contracts
Sources: Loan Agreement (Spark Networks SE), Loan Agreement (Spark Networks SE), Loan Agreement (Spark Networks SE)
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any the Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Loan Party irrevocably and unconditionally undertakes to pay to the Collateral Agent as an independent and separate creditor an amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing by such Loan Party to a Secured Party under or in connection with the Loan Documents as and when the same fall due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);
(b) the Collateral Agent shall have its own independent right to claim performance of the Parallel Obligations (including, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect of any kind of insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;
(c) the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations shall be decreased to the extent the Collateral Agent receives (and retains) and applies any payment against the discharge of its Parallel Obligations to the Collateral Agent and the Original Obligations shall be decreased to the same extent;
(ii) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge of the Parallel Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations under the Loan Documents, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 9.24 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.239.24; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral Agent.
Appears in 3 contracts
Sources: Incremental Assumption Agreement (Mallinckrodt PLC), Credit Agreement (Mallinckrodt PLC), Credit Agreement (Mallinckrodt PLC)
Parallel Debt. For To grant the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under security pursuant to any Dutch Security Documents governed by the laws of (or Agreement to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the European Collateral Agent as trustee or agent for the Secured PartiesAgent, notwithstanding any contrary provision in any Loan Document:
(a) each European Loan Party irrevocably and unconditionally undertakes (and to the extent necessary undertakes in advance (bij voorbaat)) to pay to the European Collateral Agent as an independent and separate creditor an amount (the “Parallel Obligations”) amounts equal to: (i) all present and future, actual or contingent to any amounts owing from time to time by such a European Loan Party to a Secured any Guaranteed Party under or in connection with the any Loan Documents Document as and when the same fall due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such amounts are due. Each European Loan Party owes and the Administrative Agent and the Guaranteed Parties acknowledge that the obligations of each Loan Party under this Section 9.21 are several and are separate and independent (eigen zelfstandige verplichtingen) from, and shall not in any way limit or affect, the corresponding obligations of that Loan Party to a Secured any Guaranteed Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a under any Loan Document (its “Corresponding Debt”) nor shall the amounts for which each Loan Party is liable under Section 9.21 (its “Original ObligationsParallel Debt”);) be limited or affected in any way by its Corresponding Debt provided that:
(b) the Collateral Agent shall have its own independent right to claim performance of the Parallel Obligations (including, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect of any kind of insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;
(ca) the Parallel Obligations shall not limit or affect the existence Debt of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations each Loan Party shall be decreased to the extent that its Corresponding Debt has been irrevocably paid or (in the Collateral Agent receives case of guarantee obligations) discharged; and
(and retainsb) and applies any payment against the discharge Corresponding Debt of its Parallel Obligations to the Collateral Agent and the Original Obligations each Loan Party shall be decreased to the same extent;
extent that its Parallel Debt has been irrevocably paid or (iiin the case of guarantee obligations) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge of the Parallel Obligations owing by it to the Collateral Agentdischarged; and
(iiic) if any Original Obligation is subject to any limitations under the amount of the Parallel Debt of each Loan Documents, then the same limitations Party shall apply mutatis mutandis at all times be equal to the relevant Parallel Obligation corresponding to that Original Obligation;amount of its Corresponding Debt.
(ea) For the Parallel Obligations are owed to purpose of this Section 9.21, the European Collateral Agent acts in its own name and on behalf of itself and not as agent agent, representative or representative trustee of any other person nor as trustee Guaranteed Party, and all property subject to a Lien its claims in respect of each Parallel Debt shall not be held on Collateral shall secure trust.
(b) The Liens granted under the Parallel Obligations so owing Dutch Security Agreements to the European Collateral Agent to secure each Parallel Debt is granted to the European Collateral Agent in its capacity of as sole creditor of the each Parallel Obligations;Debt.
(fc) All monies received or recovered by the European Collateral Agent pursuant to this Section 9.21, and all amounts received or recovered by the European Collateral Agent from or by the enforcement of any Lien granted to secure each Parallel Debt, shall be applied in accordance with Section 2.18(b).
(d) Without limiting or affecting the European Collateral Agent ‘s rights against the Loan Parties (whether under this Section 9.21 or under any other provision of the Loan Documents), each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees acknowledges that:
(ia) nothing in this Section 9.21 shall impose any defect affecting a claim of obligation on the European Collateral Agent against to advance any sum to any Loan Party or otherwise under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or Document, except in connection with the Loan Documentsits capacity as Guaranteed Party; and
(iib) for the purpose of any defect affecting a claim of a Secured Party against vote taken under any Loan Party under or in connection with Document, the Loan Documents will not affect any claim of the European Collateral Agent under this Section 9.23shall not be regarded as having any participation or commitment other than those which it has in its capacity as a Guaranteed Party. For the avoidance of doubt:
(a) the Parallel Debt of each Loan Party will become due and payable (opeisbaar) at the same time its Corresponding Debt becomes due and payable; and
(hb) if a Loan Party may not repay or prepay its Parallel Debt unless directed to do so by the European Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment the Lien pursuant to a Secured Party, that Secured Party must repay an amount equal to that recovery to Dutch Security Agreement is enforced by the European Collateral Agent.
Appears in 3 contracts
Sources: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)
Parallel Debt. For (a) Without prejudice to the provisions of this Agreement and the Collateral Documents and for the purpose of taking preserving the initial and ensuring the continuing validity of each Lien on the security rights granted and to be granted by the Loan Parties to the Collateral granted under Agent (or any Security Documents governed sub-agent thereof) for the benefit of the Secured Parties, an amount equal to and in the same currency as the Obligations from time to time due by such Loan Party in accordance with the laws terms and conditions of the Loan Documents, including for the avoidance of doubt, the limitations set out in any joinder agreement delivered in accordance with Section 6.11, shall be owing as separate and independent obligations of such Loan Party to each of (or to i) the extent affecting assets situated inCollateral Agent (such payment undertaking and the obligations and liabilities which are the result thereof the “Collateral Agent Parallel Debt”) Switzerland or and (ii) any other jurisdiction in which an effective Lien cannot be granted in favor sub-agent of the Collateral Agent as trustee or agent (such payment undertaking and the obligations and liabilities which are the result thereof the “Sub-Agent Parallel Debt” and, together with the Collateral Agent Parallel Debt, the “Parallel Debt”). Solely for the purposes of the Collateral Documents governed by Russian law, the Collateral Agent acts as a joint and several creditor with each Secured Parties, notwithstanding any contrary provision in any Loan Document:Party.
(ab) Each Loan Party and the Collateral Agent (and any sub-agent thereof) acknowledge that (i) for this purpose the Collateral Agent Parallel Debt constitutes undertakings, obligations and liabilities of each Loan Party irrevocably and unconditionally undertakes to pay to the Collateral Agent as an under the Loan Documents which are separate and independent from, and without prejudice to, the corresponding Obligations under the Loan Documents which such Loan Party has to the Secured Parties or any obligations with respect to the Sub-Agent Parallel Debt; (ii) for this purpose the Sub-Agent Parallel Debt constitutes undertakings, obligations and liabilities of each Loan Party to each sub-agent, if any, of the Collateral Agent under the Loan Documents which are separate creditor an and independent from, and without prejudice to, the corresponding Obligations under the Loan Documents which such Loan Party has to the Secured Parties or any obligations with respect to the Collateral Agent Parallel Debt; (iii) that the Collateral Agent Parallel Debt represents the Collateral Agent’s own claims to receive payment of the Collateral Agent Parallel Debt; and (iv) that the Sub-Agent Parallel Debt represents the applicable sub-agent’s own claims to receive payment of the Sub-Agent Parallel Debt; provided that the total amount which may become due under each of the Collateral Agent Parallel Debt and the Sub-Agent Parallel Debt shall never exceed the total amount which may become due under the Loan Documents; provided, further, that the Collateral Agent and any sub-agent thereof shall exercise its rights with respect to the applicable Parallel Debt solely in accordance with this Agreement and the Collateral Documents (including the “Parallel Obligations”Junior Lien Intercreditor Agreement).
(c) equal to: Every payment of monies made by a Loan Party to the Collateral Agent or any sub-agent thereof shall (iconditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, liquidation or similar laws of general application) all present and future, actual or contingent amounts owing be in satisfaction pro tanto of the covenant by such Loan Party contained in Section 10.22(a); provided that if any such payment as is mentioned above is subsequently avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, liquidation or similar laws of general application, the Collateral Agent and any sub-agent thereof shall be entitled to receive the amount of such payment from such Loan Party and such Loan Party shall remain liable to perform the relevant obligation and the relevant liability shall be deemed not to have been discharged.
(d) Subject to the provision in paragraph (c) of this Section 10.22, but notwithstanding any of the other provisions of this Section 10.22:
(i) the total amount due and payable as Collateral Agent Parallel Debt and Sub-Agent Parallel Debt under this Section 10.22 shall be each decreased to the extent that a Loan Party shall have paid any amounts to the Collateral Agent (or any sub-agent thereof) or to the Administrative Agent on behalf of the Secured Parties or any of them to reduce the outstanding principal amount of the Obligations or the Collateral Agent (or any sub-agent thereof) or the Administrative Agent on behalf of the Secured Parties otherwise receives any amount in payment of the Obligations; and
(ii) to the extent that a Loan Party shall have paid any amounts to the Administrative Agent or to the Collateral Agent (or any sub-agent thereof) under the applicable Parallel Debt or the Administrative Agent or the Collateral Agent (or any sub-agent thereof) shall have otherwise received monies in connection with payment of the applicable Parallel Debt, the total amount due and payable under the Loan Documents shall be decreased as and when if said amounts were received directly in payment of the same fall due for payment under Obligations.
(e) In the event of a resignation of the Collateral Agent or in connection with any of its sub-agents or the appointment of a new Collateral Agent or sub-agent pursuant to Article IX of this Agreement, the retiring Collateral Agent or sub-agent shall at the Loan Documents Parties’ sole cost and expense (includingi) assign the Parallel Debt owed to it (but not by way of novation) and (ii) transfer any Collateral granted to it securing such Parallel Debt, in each case to the successor Collateral Agent or sub-agent, as applicable.
(b) Pursuant to clause (vii)(b) of the final paragraph of Section 10.01 of the Credit Agreement, the Borrower and the Administrative Agent hereby agree that, for the avoidance of doubt, in applying the 65% limitation on the pledge of the voting stock of any change, extension or increase in those obligations Subsidiary pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as clause (D) of the date of this Agreement) definition “Collateral and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidityGuarantee Requirement”, illegality, or unenforceability of a Loan Document (the “Original Obligations”);
(b) the Collateral Agent shall have its own independent right to claim performance determination of the Parallel Obligations (including, without limitation, percentage of total voting power of all outstanding voting stock in a Subsidiary pledged shall include all voting stock in such Subsidiary pledged by any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect of any kind of insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;
(c) the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations shall be decreased to the extent the Collateral Agent receives (and retains) and applies any payment against the discharge of its Parallel Obligations to the Collateral Agent and the Original Obligations shall be decreased to the same extent;
(ii) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge of the Parallel Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations under the Loan Documents, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral AgentPerson.
Appears in 2 contracts
Sources: Credit Agreement (Gates Global Inc.), Credit Agreement (St. Augustine Real Estate Holding LLC)
Parallel Debt. For (a) Notwithstanding any other provision of this Agreement and solely for the purpose of taking ensuring and ensuring preserving the continuing validity and continuity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor certain of the Collateral Agent Documents and subject, as trustee or agent for provided below, each of the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Loan Party Parties hereby irrevocably and unconditionally undertakes to pay to the Administrative Agent or the Collateral Agent (aas applicable), as an independent creditor in its own right and separate creditor an not as representative of the other Secured Parties, sums equal to and in the currency of each amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing payable by such Loan Party to a each and any of the Secured Party Parties under or in connection with any of the Loan Documents as and when the same fall that amount falls due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a relevant Loan Document or as a result would have fallen due but for any discharge resulting from failure of invalidityanother Secured Party to take appropriate steps, illegalityin insolvency proceedings affecting that Guarantor, or unenforceability of a Loan Document to preserve its entitlement to be paid that amount (the “Original ObligationsParallel Debt”);.
(b) The Administrative Agent or the Collateral Agent (as applicable) shall have its own independent right to claim performance demand payment of the Parallel Obligations (includingamounts payable by each Guarantor under the Loan Documents, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect irrespective of any kind discharge of such Guarantor’s obligation to pay those amounts to the other Secured Parties resulting from failure by them to take appropriate steps, in insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;proceedings affecting that Loan Party, to preserve their entitlement to be paid those amounts.
(c) Any amount due and payable by a Loan Party to the Parallel Obligations shall not limit Administrative Agent or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
Collateral Agent (das applicable) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations under this Section 10.26 shall be decreased to the extent that the Collateral Agent receives other Secured Parties have received (and retainsare able to retain) payment in full of the corresponding amount under the other provisions of the Loan Documents and applies any payment against the discharge of its Parallel Obligations amount due and payable by a Loan Party to the Collateral Agent and the Original Obligations other Secured Parties under those provisions shall be decreased to the same extent;extent that the Administrative Agent or the Collateral Agent (as applicable) has received (and is able to retain) payment in full of the corresponding amount thereunder.
(iid) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge The rights of the Parallel Obligations owing by it to Secured Parties (other than the Administrative Agent or the Collateral Agent; and
(iii, as applicable) if any Original Obligation is subject to any limitations receive payment of amounts payable by each Loan Party under the Loan DocumentsDocuments are several and are separate and independent from, then and without prejudice to, but without duplication of, the same limitations shall apply mutatis mutandis to rights of the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to Administrative Agent and the Collateral Agent in its own name on behalf of itself and not (as agent or representative of any other person nor as trustee and all property subject applicable) to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party receive payment under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral Agent10.26.
Appears in 2 contracts
Sources: Credit Agreement (Irobot Corp), Credit Agreement (Irobot Corp)
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) Notwithstanding any other provision of this Agreement each Loan Party Obligor hereby irrevocably and unconditionally undertakes to pay to the Collateral Security Agent expressly (including any successor Security Agent), as an independent creditor in its own right and separate creditor an not as representative (vertegenwoordiger) of the other Finance Parties, sums equal to and in the currency of each amount (payable by the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing by such Loan Party Obligors to a Secured Party each of the Finance Parties under or in connection with each of the Loan Finance Documents as and when the same fall that amount falls due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan relevant Finance Document or as a result would have fallen due but for any suspension of invaliditypayment, illegalitymoratorium, discharge by operation of law or unenforceability of a Loan Document analogous event (the “Original Obligations”"Parallel Debt");.
(b) the Collateral The Security Agent shall have its own independent right to claim performance demand payment of the Parallel Obligations (including, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect amounts payable by the Obligors under this Clause 27.2 irrespective of any kind suspension, extinction or any other discharge for any reason whatsoever (otherwise than by payment) of insolvency proceedings) and the Parallel Obligations shall not constitute Obligors' obligation to pay those amounts to the Collateral Agent and any Secured Party as joint creditors;other Finance Parties other than a discharge by virtue of payment which those Finance Parties are entitled to retain.
(c) Any amount due and payable by any Obligor to the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations Security Agent under this Clause 27.2 shall be decreased to the extent that the Collateral Agent receives other Finance Parties have received (and retainsare able to retain) payment in full of the corresponding amount under the other provisions of the Finance Documents and applies any payment against amount due and payable by the discharge of its Parallel Obligations Obligors to the Collateral Agent and the Original Obligations other Finance Parties under those provisions shall be decreased to the same extent;extent that the Security Agent has received (and is able to retain) payment in full of the corresponding amount under this Clause 27.2.
(iid) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge The rights of the Parallel Obligations owing Finance Parties (other than the Security Agent) to receive payment of amounts payable by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations Obligors under the Loan DocumentsFinance Documents are several and are separate and independent from, then and without prejudice to, the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor rights of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have Security Agent to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party receive payment under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral AgentClause 27.2.
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (Alliance Data Systems Corp), Senior Facilities Agreement (Alliance Data Systems Corp)
Parallel Debt. For (a) Without prejudice to the provisions of the Credit Agreement and for the purpose of taking ensuring and ensuring preserving the continuing validity and continuity of each Lien on the Collateral security rights granted under any Security Documents governed and to be granted by the laws of (Pledgor under or pursuant to this Deed the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Loan Party Pledgor hereby irrevocably and unconditionally undertakes to pay to the Collateral Agent as an independent Pledgee amounts equal to and separate creditor an amount (in the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing currency of the Foreign Obligations from time to time due by such Loan Party to a Secured Party under or the Pledgor in connection accordance with the Loan Documents as terms and when the same fall due for payment under or in connection with conditions of the Loan Documents (including, for such payment undertaking and the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of and liabilities which are the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (thereof the “Original ObligationsParallel Debt”);
(b) The Pledgor and the Collateral Agent shall Pledgee acknowledge that (i) for this purpose the Parallel Debt constitutes undertakings, obligations and liabilities of the Pledgor to the Pledgee under this Deed which are separate and independent from, and without prejudice to, the corresponding Foreign Obligations which the Loan Parties have its to any of the Guaranteed Parties and (ii) that the Parallel Debt represents the Pledgee’s own independent right claims (vorderingen op naam) to claim performance receive payment of the Parallel Obligations (includingDebt, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect of any kind of insolvency proceedings) and provided that the total amount which may become due under the Parallel Obligations Debt shall not constitute never exceed the Collateral Agent and any Secured Party as joint creditors;total amount which may become due under the Foreign Obligations.
(c) the Parallel Obligations shall not limit or affect the existence Every payment of monies made by a Loan Party to any of the Original Obligations for which the Secured Guaranteed Parties shall (conditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, liquidation or similar laws of general application) be in satisfaction pro tanto of the covenant by the Pledgor contained in Clause 2.1(a), provided that, if any such payment as is mentioned above is subsequently avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, liquidation or similar laws of general application, the Pledgee shall be entitled to receive the amount of such payment from the Pledgor and the Pledgor shall remain liable to perform the relevant obligation and the relevant liability shall be deemed not to have an independent right to demand payment;been discharged.
(d) Subject to the provision in Clause 2.1(c), but notwithstanding clauses (b) and (c) aboveany of the other provisions of this Clause 2:
(i) the total amount due and payable as Parallel Obligations Debt under this Clause 2 shall be decreased to the extent the Collateral Agent receives (and retains) and applies any payment against the discharge of its Parallel Obligations to the Collateral Agent and the Original Obligations shall be decreased to the same extent;
(ii) payment by a Loan Party of its Original Obligations shall have paid any amounts to the relevant Secured Party shall to the same extent decrease and be a good discharge any of the Parallel Guaranteed Parties to reduce the outstanding Foreign Obligations owing by it to the Collateral Agent; and
(iii) if or any Original Obligation is subject to any limitations under the Loan Documents, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives Guaranteed Parties otherwise receives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent amount in respect of any claim by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim payment of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan DocumentsForeign Obligations; and
(ii) to the extent that the Pledgor shall have paid any defect affecting a claim amounts to the Pledgee under the Parallel Debt or the Pledgee shall have otherwise received monies in payment of a Secured Party against any Loan Party the Parallel Debt, the total amount due and payable under or the Foreign Obligations shall be decreased as if said amounts were received directly in connection with payment of the Foreign Obligations.
(e) The Pledgee, by signing this Deed, acknowledges the provisions of Clause 2.1 on behalf of the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; andParties.
(hf) if The Pledgee undertakes to distribute to the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay Parties an amount equal to that recovery to an amount collected or recovered by the Collateral AgentPledgee which it has applied in reduction of its claim under the Parallel Debt in accordance with the terms of this Deed, as if the corresponding claim under the Foreign Obligations of the Loan Parties has not been discharged.
Appears in 2 contracts
Sources: Pledge of Receivables, Agreement and Deed of the Creation of a First Ranking Right of Pledge of Receivables (Affiliated Computer Services Inc)
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated ina) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of Each Secured Party appoints the Collateral Agent to act as trustee or its agent for under and in connection with this Agreement and the Secured Parties, notwithstanding any contrary provision in any Loan Document:other LoanFinance Documents.
(ab) Each Secured Party authorizes the Collateral Agent to exercise the rights, powers, authorities and discretions specifically given to the Collateral Agent under or in connection with this Agreement and the other LoanFinance Documents, together with any other incidental rights, powers, authorities and discretions.
(c) Notwithstanding any other provision of this Agreement, each Loan Party hereby irrevocably and unconditionally undertakes to pay to the Collateral Agent Agent, as an independent creditor in its own right and separate creditor an not as representative of the other Secured Parties, sums equal to and in the currency of each amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing payable by such Loan Party to a Secured Party Parties under or in connection with each of the Loan Documents Documentspursuant to the Obligations (not including the payment obligations to the Collateral Agent pursuant to this Section 10.12) as and when the same fall that amount falls due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan relevant LoanFinance Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);.
(bd) the The Collateral Agent shall have its own independent right to claim performance demand payment of the Parallel Obligations amounts payable by each Loan Party under this Section 10.12.
(including, without limitation, any suit, execution, enforcement of security, recovery of guarantees e) Any amount due and applications for and voting in respect of any kind of insolvency proceedings) and the Parallel Obligations shall not constitute payable by a Loan Party to the Collateral Agent and any Secured Party as joint creditors;
(c) the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations under this Section 10.12 shall be decreased to the extent that the Collateral Agent receives other Secured Parties have received (and retainsare able to retain) payment in full of the corresponding amount under the other provisions of the LoanFinance Documents and applies any payment against the discharge of its Parallel Obligations amount due and payable by a Loan Party to the Collateral Agent and the Original Obligations other Secured Parties under those provisions shall be decreased to the same extent;
(ii) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge of the Parallel Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations under the Loan Documents, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent has received (and is able to retain) payment in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor full of the Parallel Obligations;corresponding amount under this Section 10.12.
(f) The rights of the Secured Parties (other than the Collateral Agent to receive payment of amounts payable by each Loan Party irrevocably under the Loan Documentspursuant to the Obligations) are several and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with are separate and independent from, and without prejudice to, the rights of the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party to receive payment under this Section 9.24;10.12.
(g) each Loan Party agrees that:
(i) any defect affecting a claim For purposes of the Collateral Agent against this Section 10.12, “Finance Document” means any Loan Party under this Section 9.23 will not affect Document and any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay other agreement governing an amount equal to that recovery to the Collateral AgentObligation.
Appears in 1 contract
Sources: Credit Agreement (APi Group Corp)
Parallel Debt. For (a) Notwithstanding any other provision of this Agreement and solely for the purpose of taking ensuring and ensuring preserving the continuing validity and continuity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor certain of the Collateral Agent Documents and subject, as trustee or agent for provided below, each of the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Loan Party Parties hereby irrevocably and unconditionally undertakes to pay to the Administrative Agent or the Collateral Agent (aas applicable), as an independent creditor in its own right and separate creditor an not as representative of the other Secured Parties, sums equal to and in the currency of each amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing payable by such Loan Party to a each and any of the Secured Party Parties under or in connection with any of the Loan Documents as and when the same fall that amount falls due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a relevant Loan Document or as a result would have fallen due but for any discharge resulting from failure of invalidityanother Secured Party to take appropriate steps, illegalityin insolvency proceedings affecting that Guarantor, or unenforceability of a Loan Document to preserve its entitlement to be paid that amount (the “Original ObligationsParallel Debt”);.
(b) The Administrative Agent or the Collateral Agent (as applicable) shall have its own independent right to claim performance demand payment of the Parallel Obligations (includingamounts payable by each Guarantor under the Loan Documents, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect irrespective of any kind discharge of such Guarantor’s obligation to pay those amounts to the other Secured Parties resulting from failure by them to take appropriate steps, in insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;proceedings affecting that Loan Party, to preserve their entitlement to be paid those amounts.
(c) Any amount due and payable by a Loan Party to the Parallel Obligations shall not limit Administrative Agent or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
Collateral Agent (das applicable) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations under this Section 10.26 shall be decreased to the extent that the Collateral Agent receives other Secured Parties have received (and retainsare able to retain) payment in full of the corresponding amount under the other provisions of the Loan Documents and applies any payment against the discharge of its Parallel Obligations amount due and payable by a Loan Party to the Collateral Agent and the Original Obligations other Secured Parties under those provisions shall be decreased to the same extent;extent that the Administrative Agent or the Collateral Agent (as applicable) has received (and is able to retain) payment in full of the corresponding amount thereunder.
(iid) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge The rights of the Parallel Obligations owing by it to Secured Parties (other than the Administrative Agent or the Collateral Agent; and
(iii, as applicable) if any Original Obligation is subject to any limitations receive payment of amounts payable by each Loan Party under the Loan DocumentsDocuments are several and are separate and independent from, then and without prejudice to, but without duplication of, the same limitations shall apply mutatis mutandis to rights of the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to Administrative Agent and the Collateral Agent in its own name on behalf of itself and not (as agent or representative of any other person nor as trustee and all property subject applicable) to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party receive payment under this Section 9.24;
10.26. [Signature Pages FollowSignatures Intentionally Omitted.] Warrant No. [●] Original Issue Date: March 11, 2025 iRobot Corporation, a Delaware corporation (g) each Loan Party agrees the “Company”), hereby certifies that:
, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, [●] or its registered assigns (i) any defect affecting the “Holder”), is entitled, subject to the terms set forth below, to purchase from the Company up to a claim total of [●] shares of common stock, $0.01 par value per share (the “Common Stock”), of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of Company (each such share, a Secured Party against “Warrant Share” and all such Loan Party under or in connection with shares, the Loan Documents; and
(ii“Warrant Shares”) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay at an amount exercise price per share equal to that recovery $0.01 (as adjusted from time to time as provided in Section 9 herein, the “Exercise Price”), upon surrender of this Warrant to Purchase Common Stock (including any Warrants to Purchase Common Stock issued in exchange, transfer or replacement hereof, the “Warrant”) at any time and from time to time on or after the date hereof (the “Original Issue Date”) and on or prior to 5:00 p.m. (New York City time) on March 11, 2035 (the “Termination Date”) but not thereafter, subject to the Collateral Agentfollowing terms and conditions.
Appears in 1 contract
Sources: Credit Agreement (Irobot Corp)
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated ina) Switzerland or Notwithstanding any other jurisdiction in which an effective Lien cannot be granted in favor provision of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) , each Loan Party Party, by way of an independent payment obligation, hereby irrevocably and unconditionally undertakes to pay to the Administrative Agen tor the Mexican Collateral Agent Agent, as an independent applicable, as creditor in its own right and separate creditor an not as representative of the other Secured Parties, sums equal to the aggregate amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing payable by such Loan Party in respect of its Corresponding Obligations as and to a the extent its Corresponding Obligations fall due for payment or would have fallen due but for any discharge from failure of another Secured Party to take appropriate steps, in insolvency proceedings affecting that Loan Party, to preserve its entitlement to be paid that amount. The payment undertaking of each Loan Party under this Section 10.23(a) is to be referred to as its “Parallel Debt”.
(b) The Parallel Debt will be payable in the currency or currencies of the Corresponding Obligations and will become due and payable as and when and to the extent one or more of the Corresponding Obligations become due and payable. An Event of Default in respect of the Corresponding Obligations shall constitute a default (verzuim) within the meaning of section 3:248 of the Dutch Civil Code with respect to the Parallel Debt without any notice being required.
(c) Each Loan Party, the Administrative Agent and the Mexican Collateral Agent acknowledge that the obligations of each Loan Party under paragraph (a) are several and are separate and independent from, and shall not in any way limit or affect, the Corresponding Obligations nor shall the amounts for which each Loan Party is liable under paragraph (a) be limited or affected in any way by its Corresponding Obligations provided that: (x) neither the Administrative Agent nor the Mexican Collateral Agent shall demand payment with regard to the Parallel Debt of each Loan Party to the extent that such Loan Party’s Corresponding Obligations have been irrevocably paid or (in the case of guarantee obligations) discharged and (y) neither the Administrative Agent nor the Mexican Collateral Agent shall demand payment with regard to the Corresponding Obligations of each Loan Party to the extent that such Loan Party’s Parallel Debt has been irrevocably paid or (in the case of guarantee obligations) discharged. The amount which may become payable by the Loan Parties as the Parallel Debt shall never exceed the total of the amounts which are payable under or in connection with the Loan Documents as and when the same fall due for payment under or in connection with the Loan Documents Corresponding Obligations.
(including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as d) Each of the date of this Agreement) Administrative Agent and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);
(b) the Mexican Collateral Agent acts in its own name and not as trustee and it shall have its own independent right to claim performance demand payment of the Parallel Obligations (includingamounts payable by each Loan Party under this Section 10.23, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect irrespective of any kind discharge of such Loan Party’s obligation to pay those amounts to the other Secured Parties resulting from failure by them to take appropriate steps, in insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;proceedings affecting that Loan Party, to preserve their entitlement to be paid those amounts.
(ce) Any amount due and payable by a Loan Party to the Parallel Obligations shall not limit Administrative Agent or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations Mexican Collateral Agent, as applicable, under this Section 10.23 shall be decreased to the extent that the Collateral Agent receives other Secured Parties have received (and retainsare able to retain) payment in full of the corresponding amount under the other provisions of the Loan Documents and applies any payment against the discharge of its Parallel Obligations amount due and payable by a Loan Party to the Collateral Agent and the Original Obligations other Secured Parties under those provisions shall be decreased to the same extent;
extent that the Administrative Agent or the Mexican Collateral Agent, as applicable, has received (iiand is able to retain) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge in full of the Parallel Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations corresponding amount under the Loan Documents, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;this Section 10.23.
(f) The rights of the Secured Parties (other than the Administrative Agent or the Mexican Collateral Agent, as applicable) to receive payment of amounts payable by each Loan Party irrevocably under the Loan Documents are several and unconditionally waives any right it may have are separate and independent from, and without prejudice to, the rights of the Administrative Agent or the Mexican Collateral Agent, as applicable, to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party receive payment under this Section 9.24;10.23.
(g) Without limiting or affecting the Administrative Agent’s or the Mexican Collateral Agent’s, as applicable, rights against the Loan Parties (whether under this Section 10.23 or under any other provision of the Loan Documents), each Loan Party agrees acknowledges that:
: (ix) nothing in this Section 10.23 shall impose any defect affecting a claim of obligation on the Administrative Agent or the Mexican Collateral Agent against Agent, as applicable, to advance any sum to any Loan Party or otherwise under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party Document, except in its capacity as lender thereunder, as applicable, and (y) for the purpose of any vote taken under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan PartyDocument, whether in neither the Administrative Agent nor the Mexican Collateral Agent, as applicable, shall be regarded as having any kind of insolvency proceedings participation or otherwise, any recovery in respect of commitment other than those which it has made in its capacity as a payment to a Secured Partylender, that Secured Party must repay an amount equal to that recovery to the Collateral Agentas applicable.
Appears in 1 contract
Parallel Debt. For (a) Without prejudice to the provisions of the Credit Agreement and the Collateral Documents and for the purpose of taking preserving the initial and ensuring the continuing validity of each Lien on the security interests in the Collateral granted under any Security Documents governed and to be granted by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Loan Party irrevocably and unconditionally undertakes to pay Parties to the Collateral Agent as an independent and separate creditor for the benefit of any Secured Parties and/or to the Secured Parties (or any of them), an amount (equal to and in the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing same currency as the Obligations from time to time due by such Loan Party to a Secured Party under or in connection accordance with the Loan Documents as terms and when the same fall due for payment under or in connection with conditions of the Loan Documents Documents, Letters of Credit, Secured Cash Management Agreements and Secured Hedge Agreements (includingcollectively, the “Secured Documents”) including for the avoidance of doubt, any changelimitations set forth therein, extension or increase shall be owing as separate and independent obligations of such Loan Party to the Collateral Agent as creditor in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or its own right and not anticipated as representative of the date other Secured Parties (such payment undertaking and the obligations and liabilities which are the result thereof the “Parallel Debt”).
(b) Each Loan Party and the Collateral Agent acknowledge that (i) for this purpose the Parallel Debt constitutes undertakings, obligations and liabilities of this Agreement) each Loan Party to the Collateral Agent as creditor in its own right and not as a representative under the Secured Documents which are separate and independent from, and without prejudice to, the corresponding Obligations under the Secured Documents, which such Loan Party has to the Secured Parties and (ii) any the Parallel Debt represents the Collateral Agent’s own independent rights and claims to demand and receive payment of the Parallel Debt; provided that the total amount which such Loan Party owes to a may become due under the Parallel Debt shall never exceed the total amount which may become due under the Secured Party as a result of a party rescinding a Loan Document or as a result of invalidityDocuments; provided, illegalityfurther, or unenforceability of a Loan Document (the “Original Obligations”);
(b) that the Collateral Agent shall have exercise its own independent right rights with respect to claim performance of the Parallel Obligations (including, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting Debt solely in respect of any kind of insolvency proceedings) and accordance with the Parallel Obligations shall not constitute the Collateral Agent Credit Agreement and any other Secured Party as joint creditors;Document.
(c) Every payment of monies made by a Loan Party to the Parallel Obligations Collateral Agent shall (conditionally upon such payment not limit subsequently being avoided or affect the existence reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, liquidation or similar laws of general application) be in satisfaction pro tanto of the Original Obligations for which covenant by such Loan Party contained in paragraph (a) of this Section 1.01; provided that if any such payment as is mentioned above is subsequently avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, liquidation or similar laws of general application the Secured Parties Collateral Agent shall be entitled to receive the amount of such payment from such Loan Party and such Loan Party shall remain liable to perform the relevant obligation and the relevant liability shall be deemed not to have an independent right to demand payment;been discharged.
(d) notwithstanding clauses (b) and Subject to the provision in paragraph (c) aboveof this Section 1.01, but notwithstanding any of the other provisions of this Section 1.01:
(i) the total amount due and payable as Parallel Obligations Debt under this Section 1.01 shall be decreased to the extent the Collateral Agent receives (and retains) and applies that a Loan Party shall have paid any payment against the discharge of its Parallel Obligations amounts to the Collateral Agent and the Original Obligations shall be decreased to the same extent;
(ii) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge on behalf of the Parallel applicable Secured Parties or any of them to reduce the outstanding principal amount of the applicable Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations under the Loan Documents, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to or the Collateral Agent in its own name on behalf of itself and not as agent or representative the applicable Secured Parties otherwise receives any amount in payment of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel such Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) to the extent that a Loan Parties shall have paid any defect affecting a claim amounts to the Collateral Agent under the Parallel Debt owed to it or the Collateral Agent shall have otherwise received monies in payment of the Parallel Debt owed to it, the total amount due and payable under the Secured Documents shall be decreased as if said amounts were received directly in payment of the applicable Obligations.
(e) In the event of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim resignation of the Collateral Agent under this Section 9.23; and
(h) if or the appointment of a new Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery pursuant to the Credit Agreement, the retiring or replaced Collateral Agent shall at the Loan Parties’ sole cost and expense (including legal fees) (i) assign the Parallel Debt owed to it (but not by way of novation) and (ii) transfer any Collateral granted to it securing such Parallel Debt, in each case to the successor Collateral Agent.
Appears in 1 contract
Sources: Credit Agreement (Ortho Clinical Diagnostics Holdings PLC)
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated ina) Switzerland or Notwithstanding any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Loan Party irrevocably Indenture Document to the contrary, the Corporation hereby undertakes, by way of an abstract acknowledgement of debt and unconditionally undertakes as an independent payment obligation, to pay to the Collateral Agent Trustee, as an independent a creditor in its own right and separate creditor an amount not as a representative of the holders of the Debentures (the “Parallel ObligationsHolders”) equal to: (i) , together with the Trustee, the “Secured Parties”), all present and future, actual or contingent any amounts owing which are owed by such Loan Party to a Secured Party the Corporation under or in connection with the Loan Indenture Documents to the Secured Parties from time to time (“Parallel Debt”, abstraktes Schuldanerkenntnis) as and when the same any of such amounts fall due for payment under or the relevant Indenture Document provided that this shall not at any time result in connection with the Loan Documents Corporation incurring an aggregate obligation to the Secured Parties which is greater than its obligations (including, for excluding obligations under this Section 14.22) to the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of Secured Parties under the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);Indenture Documents.
(b) the Collateral Agent shall have its own independent right to claim performance of the Parallel Obligations (including, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect of any kind of insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;
(c) the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured Parties The Trustee shall have an independent right to demand payment;payment of the Parallel Debt.
(d) notwithstanding clauses (b) and (c) above:
(i) Any amount due and payable by the Parallel Obligations Corporation to the Trustee under this Section 14.22 shall be decreased to the extent that the Collateral Agent receives other Secured Parties have received (and retainsare able to retain) payment in full under the other provisions of the Indenture Documents and applies any payment against amount due and payable by the discharge of its Parallel Obligations Corporation to the Collateral Agent and the Original Obligations other Secured Parties shall be decreased to the same extent;extent that the Trustee has received (and is able to retain) payment in full of the Parallel Debt.
(iid) The rights of the Secured Parties (other than the Trustee) to receive payment of amounts payable by a Loan Party the Corporation under the Indenture Documents are several and are separate and independent from, and without prejudice to, the rights of its Original Obligations the Trustee to receive payment under this Section 14.22.
(e) Notwithstanding the foregoing, any payment under the Indenture Documents shall be made to the relevant Secured Party shall as set out in the respective Indenture Document, unless expressly stated otherwise in that Indenture Document or unless the relevant Secured Party directs such payment to be made to the same extent decrease and be a good discharge of the Parallel Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations under the Loan Documents, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;Trustee.
(f) each Loan Party irrevocably The Trustee shall be entitled to transfer its rights and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party obligations under this Section 9.24;
(g) each Loan Party agrees that:
(i) 14.22 to any defect affecting a claim successor Trustee. The Corporation and Secured Parties hereby agree to such transfer. Further, the consent of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Corporation or Secured Party against shall not be necessary to such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral Agenttransfer.
Appears in 1 contract
Sources: Secured Trust Indenture
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Loan Party Notwithstanding any other provision of this Agreement, the Company irrevocably and unconditionally undertakes to pay to the Collateral Agent Common Security Agent, as an independent creditor in its own right and separate creditor an not as representative of the other Secured Creditors, sums equal to and in the currency of each amount payable by the Company to each of the Secured Creditors (the “Parallel Obligations”) equal to: (i) all whether present or future and future, whether actual or contingent amounts owing by such Loan Party to a contingent) under the other provisions of the Secured Party under or in connection with the Loan Documents as and when the same fall amount falls due for payment under those provisions of Secured Documents or would have fallen due but for any discharge resulting from failure of another Secured Creditor to take appropriate steps, in connection with insolvency proceedings affecting the Loan Documents (includingCompany, for to preserve its entitlement to be paid that amount. For the avoidance of doubt, interest, fees and any change, extension or increase other charges accruing on the Secured Obligations shall be included in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and Parallel Debt (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”without double-counting);.
(b) The obligation to pay Parallel Debt constitutes undertakings, obligations and liabilities of the Collateral Company to the Common Security Agent shall have its separate and independent from the obligations (whether present or future and whether actual or contingent) of the Company to the Secured Creditors or any of them. The Parallel Debt represents the Common Security Agent’s own separate and independent right claim to claim performance receive payment of the Parallel Obligations (including, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect of any kind of insolvency proceedings) and Debt from the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;Company.
(c) For the avoidance of doubt, the aggregate amount due by the Company under the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) Debt will be immediately and (c) above:
(i) the Parallel Obligations shall be automatically decreased to the extent the Collateral Agent receives (and retains) and applies Company has paid any payment against the discharge of its Parallel Obligations amounts to the Collateral Agent and Secured Creditors under the Original Obligations shall be decreased other provisions of the Secured Documents, except to the same extent;extent such payment shall have been subsequently avoided or reduced by virtue of provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application.
(iid) payment by a Loan Party For the avoidance of its Original Obligations doubt, to the relevant Secured Party shall extent the Company has paid any amounts to the same extent decrease and be a good discharge Common Security Agent under the Parallel Debt the aggregate amount due by the Company to the Secured Creditors under the other provisions of the Parallel Obligations owing by it Secured Documents will be immediately and automatically decreased accordingly, except to the Collateral Agent; and
(iii) if any Original Obligation is subject extent such payment shall have been subsequently avoided or reduced by virtue of provisions or enactments relating to any limitations under the Loan Documentsbankruptcy, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;insolvency, preference, liquidation or similar laws of general application.
(e) To the Parallel Obligations are owed to extent the Collateral Common Security Agent receives any amount in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor payment of the Parallel Obligations;Debt, the Common Security Agent shall make such amount available to the relevant Creditor Representative(s) or Hedge Counterparties, as applicable, for distributing among the Secured Creditors in accordance with the terms of the Secured Documents.
(f) each Loan Party irrevocably The obligation to pay Parallel Debt is a separate and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect independent acknowledgement of any claim obligation (est: võlatunnistus) by the Collateral Agent against Company within the meaning of § 30 of the Estonian Law of Obligations Act (est: võlaõigusseadus). For the purpose of clarification, the obligation to pay Parallel Debt is a Loan Party under this Section 9.24;constitutive acknowledgement of obligation (est: konstitutiivne võlatunnistus).
(g) Without limiting and in addition to the above, the Common Security Agent shall have the rights of the joint creditor (est: solidaarvõlausaldaja) with the other Secured Creditors in relation to sums payable by the Company to each Loan Party agrees that:of the Secured Creditors under the Secured Documents.
(ih) any defect affecting a claim Each Secured Creditor must, at the request of the Collateral Agent against Common Security Agent, perform any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or act required in connection with the Loan Documents; and
(ii) any defect affecting a claim enforcement of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of under the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns obligation to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral Agentpay Parallel Debt.
Appears in 1 contract
Sources: Intercreditor Agreement
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or Notwithstanding any other jurisdiction in which an effective Lien cannot be granted in favor provision of the Collateral Agent as trustee or agent for the Secured PartiesFinance Documents, notwithstanding any contrary provision in any Loan Document:
(a) each Loan Party Borrower hereby irrevocably and unconditionally undertakes to pay to the Collateral Agent Security Trustee, as an independent creditor in its own right and separate creditor an not as representative of the other Creditor Parties, sums equal to and in the currency of each amount payable by any Borrower and any Security Party to any Creditor Party under any Finance Document as and when that amount falls due for payment under the relevant Finance Document or would have fallen due but for any discharge resulting from failure of another Creditor Party to take appropriate steps, in insolvency proceedings affecting that Borrower, to preserve its entitlement to be paid that amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing by such Loan Party to a Secured Party under or in connection with the Loan Documents as and when the same fall due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original ObligationsDebt”);
(b) the Collateral Agent . The Security Trustee shall have its own independent right to claim performance demand payment of the Parallel Obligations (includingamounts payable by each Borrower under this Clause 29.6, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect irrespective of any kind discharge of any Borrower and/or any Security Party’s obligation to pay those amounts to the other Creditor Parties resulting from failure by them to take appropriate steps, in insolvency proceedingsproceedings affecting that Borrower and/or any Security Party, to preserve their entitlement to be paid those amounts. Any amount due and payable by a Borrower to the Security Trustee under this Clause 29.6 shall be decreased to the extent that the other Creditor Parties have received (and are able to retain) and payment in full of the Parallel Obligations shall not constitute corresponding amount under the Collateral Agent other provisions of the Finance Documents and any Secured amount due and payable by a Borrower and/or a Security Party as joint creditors;
(c) to the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured other Creditor Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations under those provisions shall be decreased to the extent the Collateral Agent receives Security Trustee has received (and retainsis able to retain) and applies any payment against in full of the discharge of its Parallel Obligations to the Collateral Agent corresponding amount under this Clause 29.6. The Borrowers and the Original Obligations shall be decreased to the same extent;
(ii) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge Creditor Parties acknowledge that, in respect of the Parallel Obligations owing by it to Debt, the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations under the Loan Documents, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent Security Trustee acts in its own name on behalf of itself and not as agent or representative of the Creditor Parties or any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral Agent.them
Appears in 1 contract
Sources: Supplemental Agreement (Navios Maritime Containers Inc.)
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or 21.12.1 Notwithstanding any other jurisdiction in which an effective Lien cannot be granted in favor provision of this Agreement the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Loan Party Borrower irrevocably and unconditionally undertakes undertake to pay to the Collateral Agent Security Trustee, as an independent creditor in its own right and separate creditor an not as representative of the Banks, sums equal to and in the currency of each amount (payable by the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing by such Loan Party Borrower to a Secured Party each of the Banks under or in connection with by virtue of this Agreement and the Loan other Finance Documents as and when the same fall that amount falls due for payment under thereunder or in connection with the Loan Documents (includingwould have fallen due but for any suspension of payment, for the avoidance moratorium, discharge by operation of doubt, any change, extension law or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);analogous event.
(b) the Collateral Agent 21.12.2 The Security Trustee shall have its own independent right to claim performance demand payment of the Parallel Obligations (includingamounts payable by the Borrower under this Clause 21.12, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect irrespective of any kind of insolvency proceedingssuspension, extinction or any other discharge for any reason whatsoever (otherwise than by payment) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;
(c) the Parallel Obligations shall not limit or affect the existence of the Original Obligations for Borrower’s obligation to pay those amounts to the Banks other than a discharge by virtue of payment which those Banks are entitled to retain.
21.12.3 Any amount due and payable by the Secured Parties shall have an independent right Borrower to demand payment;
(d) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations Security Trustee under this Clause 21.12 shall be decreased to the extent that the Collateral Agent receives Banks have received (and retainsare able to retain) payment in full of the corresponding amount under the other provisions of this Agreement and applies the other Finance Documents and any payment against amount due and payable by the discharge of its Parallel Obligations Borrower to the Collateral Agent and the Original Obligations Banks under those provisions shall be decreased to the same extent;
extent that the Security Trustee has received (iiand is able to retain) payment in full of the corresponding amount under this Clause 21.12.
21.12.4 The rights of the Banks (other than the Security Trustee) to receive payment of amounts payable by a Loan Party the Borrower under this Agreement and the other Finance Documents are several and are separate and independent from, and without prejudice to, the rights of its Original Obligations the Security Trustee to receive payment under this Clause 21.12.
21.12.5 Any amounts received by the Security Trustee shall, to the relevant Secured Party shall to extent permitted by the same extent decrease and be a good discharge mandatory provisions of the Parallel Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations under the Loan Documentsapplicable law, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent be applied in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant accordance with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral AgentClause 9.2.
Appears in 1 contract
Sources: Loan Agreement (Euronav NV)
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated ina) Switzerland or Notwithstanding any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) Document to the contrary, each Loan Party irrevocably hereby undertakes, by way of an abstract acknowledgement of debt and unconditionally undertakes as an independent payment obligation, to pay to the Collateral Agent as an independent and separate creditor an amount (the “Parallel Obligations”) equal to: (i) all present and futureAdministrative Agent, actual or contingent amounts owing by such Loan Party to a Secured Party under or in connection with the Loan Documents as and when the same fall due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);
(b) the Collateral Agent shall have its creditor in his own independent right to claim performance of the Parallel Obligations (including, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect of any kind of insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;
(c) the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations shall be decreased to the extent the Collateral Agent receives (and retains) and applies any payment against the discharge of its Parallel Obligations to the Collateral Agent and the Original Obligations shall be decreased to the same extent;
(ii) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge of the Parallel Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations under the Loan Documents, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or a representative of other Secured Parties, all and any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim amounts which are owed by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents to the Secured Parties from time to time (“Parallel Debt”, abstraktes Schuldanerkenntnis) as and when any of such amounts fall due for payment under the relevant Loan Document provided that this shall not at any time result in a Loan Party incurring an aggregate obligation to the Secured Parties which is greater than its obligations (excluding obligations under this Section 9.20 (Parallel Debt)) to the Secured Parties under the Loan Documents; and.
(iib) any defect affecting The Administrative Agent shall have an independent right to demand payment of the Parallel Debt.
(c) Any amount due and payable by a claim of a Secured Party against any Loan Party under or in connection with to the Loan Documents will not affect any claim of the Collateral Administrative Agent under this Section 9.23; and9.20 shall be decreased to the extent that the other Secured Parties have received (and are able to retain) payment in full under the other provisions of the Loan Documents and any amount due and payable by a Loan Party to the other Secured Parties shall be decreased to the extent that the Administrative Agent has received (and is able to retain) payment in full of the Parallel Debt.
(hd) if The rights of the Collateral Secured Parties (other than the Administrative Agent) to receive payment of amounts payable by the Borrower under the Loan Documents are several and are separate and independent from, and without prejudice to, the rights of the Administrative Agent returns to receive payment under this Section 9.20 (Parallel Debt). WEST\277974037.8 96
(e) Notwithstanding the foregoing, any payment under the Loan Documents shall be made to the relevant Secured Party as set out in the respective Loan Document, unless expressly stated otherwise in that Loan Document or unless the relevant Secured Party directs such payment to be made to the Administrative Agent.
(f) The Administrative Agent shall be entitled to transfer his rights and obligations under this Section 9.20 (Parallel Debt) to any successor Administrative Agent. The a Loan PartyParties and Secured Parties hereby agree to such transfer. Further, whether in the consent of any kind of insolvency proceedings Loan Party or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal shall not be necessary to that recovery to the Collateral Agentsuch transfer.
Appears in 1 contract
Sources: Credit Agreement (Meet Group, Inc.)
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated ina) Switzerland or Notwithstanding any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) Document to the contrary, each Loan Party irrevocably hereby undertakes, by way of an abstract acknowledgement of debt and unconditionally undertakes as an independent payment obligation, to pay to the Collateral Agent as an independent and separate creditor an amount (the “Parallel Obligations”) equal to: (i) all present and futureAdministrative Agent, actual or contingent amounts owing by such Loan Party to a Secured Party under or in connection with the Loan Documents as and when the same fall due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);
(b) the Collateral Agent shall have its own independent right to claim performance of the Parallel Obligations (including, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect of any kind of insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;
(c) the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations shall be decreased to the extent the Collateral Agent receives (and retains) and applies any payment against the discharge of its Parallel Obligations to the Collateral Agent and the Original Obligations shall be decreased to the same extent;
(ii) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge of the Parallel Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations under the Loan Documents, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent creditor in its own name on behalf of itself right and not as agent or a representative of other Secured Parties, all and any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim amounts which are owed by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; andDocuments to the Secured Parties from time to time (“Parallel Debt”, abstraktes Schuldanerkenntnis) as and when any of such amounts fall due for payment under the relevant Loan Document.
(iib) any defect affecting The Administrative Agent shall have an independent right to demand payment of the Parallel Debt.
(c) Any amount due and payable by a claim of a Secured Party against any Loan Party under or in connection with to the Loan Documents will not affect any claim of the Collateral Administrative Agent under this Section 9.23; and11.24 shall be decreased to the extent that the other Secured Parties have received (and are able to retain) payment in full under the other provisions of the Loan Documents and any amount due and payable by a Loan Party to the other Secured Parties shall be decreased to the extent that the Administrative Agent has received (and is able to retain) payment in full of the Parallel Debt. Accordingly, the aggregate amount receivable and received by the Secured Parties shall at no time exceed the aggregate amount due and payable under the provisions of the Loan Documents (other than under this Section 11.24).
(hd) if The rights of the Collateral Secured Parties (other than the Administrative Agent) to receive payment of amounts payable under the Loan Documents are several and are separate and independent from, and without prejudice to, the rights of the Administrative Agent returns to receive payment under this Section 11.24.
(e) Notwithstanding the foregoing, any payment under the Loan Documents shall be made to the relevant Secured Party as set out in the respective Loan Document, unless expressly stated otherwise in that Loan Document or unless the relevant Secured Party directs such payment to be made to the Administrative Agent.
(f) The Administrative Agent shall be entitled to transfer its rights and obligations under this Section 11.24 to any successor Administrative Agent. The Loan PartyParties and the Secured Parties hereby agree to such transfer. Further, whether in the consent of any kind of insolvency proceedings Loan Party or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal shall not be necessary to that recovery to the Collateral Agentsuch transfer.
Appears in 1 contract
Sources: Credit Agreement (Meet Group, Inc.)
Parallel Debt. For (a) Notwithstanding any other provision of this Agreement and solely for the purpose of taking ensuring and ensuring preserving the continuing validity and continuity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor certain of the Collateral Agent Documents and subject, as trustee or agent for provided below, each of the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Loan Party Parties hereby irrevocably and unconditionally undertakes to pay to the Administrative Agent or the Collateral Agent (aas applicable), as an independent creditor in its own right and separate creditor an not as representative of the other Secured Parties, sums equal to and in the currency of each amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing payable by such Loan Party to a each and any of the Secured Party Parties under or in connection with any of the Loan Documents as and when the same fall that amount falls due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a relevant Loan Document or as a result would have fallen due but for any discharge resulting from failure of invalidityanother Secured Party to take appropriate steps, illegalityin insolvency proceedings affecting that Guarantor, or unenforceability of a Loan Document to preserve its entitlement to be paid that amount (the “Original ObligationsParallel Debt”);.
(b) The Administrative Agent or the Collateral Agent (as applicable) shall have its own independent right to claim performance demand payment of the Parallel Obligations (includingamounts payable by each Guarantor under the Loan Documents, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect irrespective of any kind discharge of such Guarantor’s obligation to pay those amounts to the other Secured Parties resulting from failure by them to take appropriate steps, in insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;proceedings affecting that Loan Party, to preserve their entitlement to be paid those amounts.
(c) Any amount due and payable by a Loan Party to the Parallel Obligations shall not limit Administrative Agent or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
Collateral Agent (das applicable) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations under this Section 10.26 shall be decreased to the extent that the Collateral Agent receives other Secured Parties have received (and retainsare able to retain) payment in full of the corresponding amount under the other provisions of the Loan Documents and applies any payment against the discharge of its Parallel Obligations amount due and payable by a Loan Party to the Collateral Agent and the Original Obligations other Secured Parties under those provisions shall be decreased to the same extent;extent that the Administrative Agent or the Collateral Agent (as applicable) has received (and is able to retain) payment in full of the corresponding amount thereunder.
(iid) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge The rights of the Parallel Obligations owing by it to Secured Parties (other than the Administrative Agent or the Collateral Agent; and
(iii, as applicable) if any Original Obligation is subject to any limitations receive payment of amounts payable by each Loan Party under the Loan DocumentsDocuments are several and are separate and independent from, then and without prejudice to, but without duplication of, the same limitations shall apply mutatis mutandis to rights of the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to Administrative Agent and the Collateral Agent in its own name on behalf of itself and not (as agent or representative of any other person nor as trustee and all property subject applicable) to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party receive payment under this Section 9.24;
10.26. [Signatures Intentionally Omitted.] Warrant No. [•] Original Issue Date: June 5, 2025 iRobot Corporation, a Delaware corporation (g) each Loan Party agrees the “Company”), hereby certifies that:
, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, [•] or its registered assigns (i) any defect affecting the “Holder”), is entitled, subject to the terms set forth below, to purchase from the Company up to a claim total of [•] shares of common stock, $0.01 par value per share (the “Common Stock”), of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of Company (each such share, a Secured Party against “Warrant Share” and all such Loan Party under or in connection with shares, the Loan Documents; and
(ii“Warrant Shares”) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay at an amount exercise price per share equal to that recovery $0.01 (as adjusted from time to time as provided in Section 9 herein, the “Exercise Price”), upon surrender of this Warrant to Purchase Common Stock (including any Warrants to Purchase Common Stock issued in exchange, transfer or replacement hereof, the “Warrant”) at any time and from time to time on or after the date hereof (the “Original Issue Date”) and on or prior to 5:00 p.m. (New York City time) on June 5, 2035 (the “Termination Date”) but not thereafter, subject to the Collateral Agentfollowing terms and conditions.
Appears in 1 contract
Sources: Credit Agreement (Irobot Corp)
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) Notwithstanding any other provision of this Agreement, each Loan Party hereby irrevocably and unconditionally undertakes to pay to the Collateral Agent Administrative Agent, as an independent creditor in its own right and separate creditor an not as representative of the other Secured Parties, sums equal to and in the currency of each amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing payable by such Loan Party to a the Secured Party Parties under or in connection with each of the Loan Documents Documents, the Existing Bilateral Letter of Credit, the Secured Cash Management Agreements and the Secured Hedge Agreements as and when the same fall that amount falls due for payment under or in connection with the Loan Documents Documents, the Existing Bilateral Letter of Credit, the Secured Cash Management Agreements or the Secured Hedge Agreements, as applicable, or would have fallen due but for (including, for the avoidance i) any discharge resulting from failure of doubt, any change, extension or increase in those obligations pursuant another Secured Party to or in connection with any amendment or supplement or restatement or novation of any Loan Documenttake appropriate steps, in each case whether insolvency proceedings affecting the Loan Parties (or, if applicable, other Restricted Subsidiaries), to preserve its entitlement to be paid that amount, or not anticipated as of the date of this Agreement) and (ii) any amount which such modification of obligations of the Loan Party owes Parties (or, if applicable, other Restricted Subsidiaries) to a the Secured Party as a result Parties under the Loan Documents, the Existing Bilateral Letter of a party rescinding a Credit, the Secured Cash Management Agreements and the Secured Hedge Agreements resulting from an arrangement (if any) reached in insolvency proceedings affecting the Loan Document or as a result of invalidityParties (or, illegalityif applicable, or unenforceability of a Loan Document (the “Original Obligations”other Restricted Subsidiaries);.
(b) the Collateral The Administrative Agent shall have its own independent right to claim performance demand payment of the Parallel Obligations amounts payable by the Loan Parties under this Section 10.24, irrespective of (includingi) any discharge of the Loan Parties’ (or, without limitationif applicable, other Restricted Subsidiaries’) obligation to pay those amounts to the other Secured Parties resulting from failure by them to take appropriate steps, in insolvency proceedings affecting the Loan Parties (or, if applicable, other Restricted Subsidiaries), to preserve their entitlement to be paid those amounts, or (ii) any suitmodification affecting the obligations of the Loan Parties (or, executionif applicable, enforcement other Restricted Subsidiaries) to the Secured Parties under the Loan Documents, the Existing Bilateral Letter of securityCredit, recovery of guarantees and applications for and voting the Secured Cash Management Agreements or the Secured Hedge Agreements resulting from an arrangement (if any) reached in respect of any kind of insolvency proceedings) and proceedings affecting the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;Loan Parties (or, if applicable, other Restricted Subsidiaries).
(c) Any amount due and payable by the Parallel Obligations shall not limit or affect Loan Parties to the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations Administrative Agent under this Section 10.24 shall be decreased to the extent that the Collateral Agent receives other Secured Parties have received (and retainsare able to retain) payment in full of the corresponding amount under the other provisions of the Loan Documents, the Existing Bilateral Letter of Credit, the Secured Cash Management Agreements or the Secured Hedge Agreements, as applicable, and applies any payment against amount due and payable by the discharge of its Parallel Obligations Loan Parties to the Collateral Agent and the Original Obligations other Secured Parties under those provisions shall be decreased to the same extent;
extent that the Administrative Agent has received (iiand is able to retain) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge in full of the Parallel Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations under the Loan Documents, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party amount under this Section 9.24;10.24.
(gd) each Loan Party agrees that:
(i) any defect affecting a claim of Any amount received by the Collateral Agent against any Loan Party under Administrative Agent, as creditor, pursuant to this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or 10.24 shall be applied as set forth in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral Agent8.03.
Appears in 1 contract
Sources: Credit Agreement (Sylvamo Corp)
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated ina) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of Each Secured Party appoints the Collateral Agent to act as trustee or its agent for under and in connection with this Agreement and the Secured Parties, notwithstanding any contrary provision in any Loan Document:other Finance Documents.
(ab) Each Secured Party authorizes the Collateral Agent to exercise the rights, powers, authorities and discretions specifically given to the Collateral Agent under or in connection with this Agreement and the other Finance Documents, together with any other incidental rights, powers, authorities and discretions.
(c) Notwithstanding any other provision of this Agreement, each Loan Party hereby irrevocably and unconditionally undertakes to pay to the Collateral Agent Agent, as an independent creditor in its own right and separate creditor an not as representative of the other Secured Parties, sums equal to and in the currency of each amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing payable by such Loan Party to a Secured Party under or in connection with Parties pursuant to the Loan Documents Obligations (not including the payment obligations to the Collateral Agent pursuant to this Section 10.12) as and when the same fall that amount falls due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan relevant Finance Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);.
(bd) the The Collateral Agent shall have its own independent right to claim performance demand payment of the Parallel Obligations amounts payable by each Loan Party under this Section 10.12.
(including, without limitation, any suit, execution, enforcement of security, recovery of guarantees e) Any amount due and applications for and voting in respect of any kind of insolvency proceedings) and the Parallel Obligations shall not constitute payable by a Loan Party to the Collateral Agent and any Secured Party as joint creditors;
(c) the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations under this Section 10.12 shall be decreased to the extent that the Collateral Agent receives other Secured Parties have received (and retainsare able to retain) payment in full of the corresponding amount under the other provisions of the Finance Documents and applies any payment against the discharge of its Parallel Obligations amount due and payable by a Loan Party to the Collateral Agent and the Original Obligations other Secured Parties under those provisions shall be decreased to the same extent;
(ii) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge of the Parallel Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations under the Loan Documents, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent has received (and is able to retain) payment in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor full of the Parallel Obligations;corresponding amount under this Section 10.12.
(f) The rights of the Secured Parties (other than the Collateral Agent to receive payment of amounts payable by each Loan Party irrevocably pursuant to the Obligations) are several and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with are separate and independent from, and without prejudice to, the rights of the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party to receive payment under this Section 9.24;10.12. |US-DOCS\126402975.16140630557.8||
(g) each Loan Party agrees that:
(i) any defect affecting a claim For purposes of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party10.12, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral Agent.“
Appears in 1 contract
Sources: Credit Agreement (APi Group Corp)
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Loan Party Notwithstanding any other provision of this Agreement, the Company irrevocably and unconditionally undertakes to pay to the Collateral Agent Common Security Agent, as an independent creditor in its own right and separate creditor an not as representative of the other Secured Creditors, sums equal to and in the currency of each amount payable by the Company to each of the Secured Creditors (the “Parallel Obligations”) equal to: (i) all whether present or future and future, whether actual or contingent amounts owing by such Loan Party to a contingent) under the other provisions of the Secured Party under or in connection with the Loan Documents as and when the same fall amount falls due for payment under those provisions of Secured Documents or would have fallen due but for any discharge resulting from failure of another Secured Creditor to take appropriate steps, in connection with insolvency proceedings affecting the Loan Documents (includingCompany, for to preserve its entitlement to be paid that amount. For the avoidance of doubt, interest, fees and any change, extension or increase other charges accruing on the Secured Obligations shall be included in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and Parallel Debt (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”without double-counting);.
(b) The obligation to pay Parallel Debt constitutes undertakings, obligations and liabilities of the Collateral Company to the Common Security Agent shall have its separate and independent from the obligations (whether present or future and whether actual or contingent) of the Company to the Secured Creditors or any of them. The Parallel Debt represents the Common Security Agent’s own separate and independent right claim to claim performance receive payment of the Parallel Obligations (including, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect of any kind of insolvency proceedings) and Debt from the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;Company.
(c) For the avoidance of doubt, the aggregate amount due by the Company under the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) Debt will be immediately and (c) above:
(i) the Parallel Obligations shall be automatically decreased to the extent the Collateral Agent receives (and retains) and applies Company has paid any payment against the discharge of its Parallel Obligations amounts to the Collateral Agent and Secured Creditors under the Original Obligations shall be decreased other provisions of the Secured Documents, except to the same extent;extent such payment shall have been subsequently avoided or reduced by virtue of provisions or enactments relating to bankruptcy, insolvency, preference, liquidation or similar laws of general application.
(iid) payment by a Loan Party For the avoidance of its Original Obligations doubt, to the relevant Secured Party shall extent the Company has paid any amounts to the same extent decrease and be a good discharge Common Security Agent under the Parallel Debt the aggregate amount due by the Company to the Secured Creditors under the other provisions of the Parallel Obligations owing by it Secured Documents will be immediately and automatically decreased accordingly, except to the Collateral Agent; and
(iii) if any Original Obligation is subject extent such payment shall have been subsequently avoided or reduced by virtue of provisions or enactments relating to any limitations under the Loan Documentsbankruptcy, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;insolvency, preference, liquidation or similar laws of general application.
(e) To the Parallel Obligations are owed to extent the Collateral Common Security Agent receives any amount in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor payment of the Parallel Obligations;Debt, the Common Security Agent shall make such amount available to the relevant Creditor Representative(s) or Hedge Counterparties, as applicable, for distributing among the Secured Creditors in accordance with the terms of the Secured Documents.
(f) each Loan Party irrevocably The obligation to pay Parallel Debt is a separate and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect independent acknowledgement of any claim obligation (est: võlatunnistus) by the Collateral Agent against Company within the meaning of § 30 of the Estonian Law of Obligations Act (est: võlaõigusseadus). For the purpose of clarification, the obligation to pay Parallel Debt is a Loan Party under this Section 9.24;constitutive acknowledgement of obligation (est: konstitutiivne võlatunnistus).
(g) Without limiting and in addition to the above, the Common Security Agent shall have the rights of the joint creditor (est: solidaarvõlausaldaja) with the other Secured Creditors in relation to sums payable by the Company to each Loan Party agrees that:of the Secured Creditors under the Secured Documents.
(ih) any defect affecting a claim Each Secured Creditor must, at the request of the Collateral Agent against Common Security Agent, perform any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or act required in connection with the Loan Documents; and
(ii) any defect affecting a claim enforcement of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of under the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns obligation to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral Agentpay Parallel Debt.
Appears in 1 contract
Sources: Intercreditor Agreement
Parallel Debt. For (a) Without prejudice to the provisions of this Agreement and the Collateral Documents and for the purpose of taking preserving the initial and ensuring the continuing validity of each Lien on the Collateral security rights granted under any Security Documents governed and to be granted by the laws of (or Loan Parties to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor Administrative Agent for the benefit of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Loan Party irrevocably and unconditionally undertakes to pay to the Collateral Agent as an independent and separate creditor an amount (equal to and in the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing same currency as the Obligations from time to time due by such Loan Party to a Secured Party under or in connection accordance with the Loan Documents as terms and when the same fall due for payment under or in connection with conditions of the Loan Documents (includingDocuments, including for the avoidance of doubt, the limitations set out in any changejoinder agreement delivered in accordance with Section 6.11, extension or increase in those shall be owing as a separate and independent obligation of such Loan Party to the Administrative Agent (such payment undertaking and the obligations pursuant and liabilities which are the result thereof the “Parallel Debt”).
(b) Each Loan Party and the Administrative Agent acknowledge that (i) for this purpose the Parallel Debt constitutes undertakings, obligations and liabilities of each Loan Party to or in connection with any amendment or supplement or restatement or novation of any the Administrative Agent under the Loan DocumentDocuments which are separate and independent from, in each case whether or not anticipated as of and without prejudice to, the date of this Agreement) corresponding Obligations under the Loan Documents which such Loan Party has to the Secured Parties and (ii) any amount which such Loan Party owes that the Parallel Debt represents the Administrative Agent’s own claims to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);
(b) the Collateral Agent shall have its own independent right to claim performance receive payment of the Parallel Obligations (includingDebt; provided that the total amount which may become due under the Parallel Debt shall never exceed the total amount which may become due under the Loan Documents; provided, without limitationfurther, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting that the Administrative Agent shall exercise its rights with respect to the Parallel Debt solely in respect of any kind of insolvency proceedings) accordance with this Agreement and the Parallel Obligations shall not constitute Collateral Documents (including the Collateral Agent and any Secured Party as joint creditors;Junior Lien Intercreditor Agreement).
(c) Every payment of monies made by a Loan Party to the Parallel Obligations Administrative Agent shall (conditionally upon such payment not limit subsequently being avoided or affect the existence reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, liquidation or similar laws of general application) be in satisfaction pro tanto of the Original Obligations for which covenant by such Loan Party contained in Section 10.22(a); provided that if any such payment as is mentioned above is subsequently avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, liquidation or similar laws of general application, the Secured Parties Administrative Agent shall be entitled to receive the amount of such payment from such Loan Party and such Loan Party shall remain liable to perform the relevant obligation and the relevant liability shall be deemed not to have an independent right to demand payment;been discharged.
(d) notwithstanding clauses (b) and Subject to the provision in paragraph (c) aboveof this Section 10.22, but notwithstanding any of the other provisions of this Section 10.22:
(i) the total amount due and payable as Parallel Obligations Debt under this Section 10.22 shall be decreased to the extent the Collateral Agent receives (and retains) and applies any payment against the discharge of its Parallel Obligations to the Collateral Agent and the Original Obligations shall be decreased to the same extent;
(ii) payment by that a Loan Party of its Original Obligations shall have paid any amounts to the relevant Secured Party shall Administrative Agent or to the same extent decrease and be a good discharge of the Parallel Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations under the Loan Documents, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Administrative Agent in its own name on behalf of itself and not as agent the Secured Parties or representative any of any other person nor as trustee and all property subject them to a Lien on Collateral shall secure reduce the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor outstanding principal amount of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with Obligations or the Collateral Administrative Agent in respect of any claim by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim on behalf of the Collateral Agent against Secured Parties otherwise receives any Loan Party under this Section 9.23 will not affect any claim amount in payment of a Secured Party against such Loan Party under or in connection with the Loan DocumentsObligations; and
(ii) any defect affecting to the extent that a claim of a Secured Party against any Loan Party shall have paid any amounts to the Administrative Agent under the Parallel Debt or the Administrative Agent shall have otherwise received monies in connection with payment of the Parallel Debt, the total amount due and payable under the Loan Documents will not affect any claim shall be decreased as if said amounts were received directly in payment of the Collateral Agent under this Section 9.23; andObligations.
(he) if In the Collateral event of a resignation of the Administrative Agent returns pursuant to any Loan PartySection 9.06 of this Agreement, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which the retiring Administrative Agent shall assign the Parallel Debt owed to it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral successor Administrative Agent.
Appears in 1 contract
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) Notwithstanding any other provision of this Agreement, each Loan Party Debtor hereby irrevocably and unconditionally undertakes to pay to the Collateral Agent Security Trustee, as an independent creditor in its own right and separate creditor an not as representative of the other Secured Parties, sums equal to and in the currency of each amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing payable by such Loan Party Debtor to a each of the Secured Party Parties under or in connection with each of the Loan Debt Documents as and when the same fall that amount falls due for payment under the relevant Debt Document or in connection with the Loan Documents (including, would have fallen due but for the avoidance of doubt, any change, extension or increase in those obligations pursuant discharge resulting from failure to or in connection with any amendment or supplement or restatement or novation of any Loan Documentanother Secured Party to take appropriate steps, in each case whether or not anticipated as of the date of insolvency proceedings affecting that Debtor, to preserve its entitlement to be paid that amount (with respect to German Security Interests, this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result undertaking shall be an abstract acknowledgement of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document debt (the “Original Obligations”abstraktes Schuldanerkenntnis);).
(b) Subject to paragraph (d) below, the Collateral Agent Security Trustee shall have its own independent right to claim performance demand payment of the Parallel Obligations (includingamounts payable by each Debtor under this Clause 16, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect irrespective of any kind discharge (other than by way of payment) of such Debtor’s obligation to pay those amounts to the other Secured Parties resulting from failure by them to take appropriate steps, in insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;proceedings affecting that Debtor, to preserve their entitlement to be paid those amounts.
(c) Any amount due and payable by the Parallel Obligations shall not limit or affect Debtors to the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations Security Trustee under this Clause 16 shall be decreased to the extent that the Collateral Agent receives other Secured Parties have received (and retainsare able to retain) payment in full of the corresponding amount under the other provisions of the Debt Documents and applies any payment against amount due and payable by the discharge of its Parallel Obligations Debtors to the Collateral Agent and the Original Obligations other Secured Parties under those provisions shall be decreased to the same extent;extent that the Security Trustee has received (and is able to retain) payment in full of the corresponding amount under this Clause 16.
(iid) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge The rights of the Parallel Obligations owing Secured Parties (other than the Security Trustee) to receive payment of amounts payable by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations each Debtor under the Loan DocumentsDebt Documents are several and are separate and independent from, then and without prejudice to, the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor rights of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have Security Trustee to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party receive payment under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral AgentClause 16.
Appears in 1 contract
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) Notwithstanding any other provision of this Agreement, each Loan Party Debtor hereby irrevocably and unconditionally undertakes to pay to the Collateral Agent Security Trustee, as an independent creditor in its own right and separate creditor an not as representative or trustee of the other Secured Parties, sums equal to and in the currency of each amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing payable by such Loan Party Debtor to a each of the Secured Party Parties under or in connection with each of the Loan Debt Documents as and when the same fall that amount falls due for payment under the relevant Debt Document or in connection with the Loan Documents (including, would have fallen due but for the avoidance of doubt, any change, extension or increase in those obligations pursuant discharge resulting from failure to or in connection with any amendment or supplement or restatement or novation of any Loan Documentanother Secured Party to take appropriate steps, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes insolvency proceedings affecting that Debtor, to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);preserve its entitlement to be paid that amount.
(b) Subject to paragraph (d) below, the Collateral Agent Security Trustee shall have its own independent right to claim performance demand payment in its own name of the Parallel Obligations (includingamounts payable by each Debtor under this Clause 17.2, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect irrespective of any kind discharge (other than by way of payment) of such Debtor’s obligation to pay those amounts to the other Secured Parties resulting from failure by them to take appropriate steps, in insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;proceedings affecting that Debtor, to preserve their entitlement to be paid those amounts.
(c) Any amount due and payable by the Parallel Obligations shall not limit or affect Debtors to the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations Security Trustee under this Clause 17.2 shall be decreased to the extent that the Collateral Agent receives other Secured Parties have received (and retainsare able to retain) payment in full of the corresponding amount under the other provisions of the Debt Documents and applies any payment against amount due and payable by the discharge of its Parallel Obligations Debtors to the Collateral Agent and the Original Obligations other Secured Parties under those provisions shall be decreased to the same extent;extent that the Security Trustee has received (and is able to retain) payment in full of the corresponding amount under this Clause 17.2. Any amount due and payable by the Debtors to the Security Trustee under this Clause 17.2 shall be increased to the extent that the Secured Parties are entitled to an increase of the corresponding amount under the other Debt Documents.
(iid) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge The rights of the Parallel Obligations owing Secured Parties (other than the Security Trustee) to receive payment of amounts payable by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations each Debtor under the Loan DocumentsDebt Documents are several and are separate and independent from, then and without prejudice to, the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor rights of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have Security Trustee to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party receive payment under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral AgentClause 17.2.
Appears in 1 contract
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Loan Each Credit Party hereby irrevocably and unconditionally undertakes undertake to pay the Administrative Agent amounts equal to the Collateral Agent as an independent and separate creditor an amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent any amounts owing by such Loan Credit Party to a Secured Party each Lender under or in connection with the Loan Credit Documents as and when the same fall due for payment under or thereunder, so that the Administrative Agent shall be the obligee of such covenant to pay and shall be entitled to claim performance thereof in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or its own name and not anticipated as agent acting on behalf of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);Lenders.
(b) The Credit Parties and the Collateral Administrative Agent shall have its own independent right to claim performance acknowledge that for this purpose such obligations of the Parallel Obligations (includingCredit Parties are several and are separate and independent from, and without limitationprejudice to, the identical obligations which the Credit Parties have to each Lender under the relevant Credit Documents, provided that this shall not, at the time, result in any suit, execution, enforcement of security, recovery of guarantees Credit Party incurring an aggregate obligation to the Lenders and applications for and voting in respect of any kind of insolvency proceedings) and Administrative Agent which is greater than the Parallel Obligations shall not constitute obligation to the Collateral Agent and any Secured Party as joint creditors;Lenders under the Credit Documents.
(c) Without prejudice to the Parallel Obligations shall not limit or affect foregoing, it is agreed by the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
parties that (i) the amounts due and payable by any Credit Party under this subsection 10.12 (the "Parallel Obligations Debt") shall be decreased to the extent the Collateral Agent receives (and retains) and applies that such Credit Party has paid any payment against the discharge of its Parallel Obligations amounts to the Collateral Administrative Agent or any Lender in respect of liabilities hereunder and vice versa and (ii) the Parallel Debt shall not exceed the aggregate of the corresponding obligations which any Credit Party has to the Administrative Agent and the Original Obligations Lenders under the Credit Documents.
(d) Nothing in this subsection 10.12 shall be decreased in any way negate, affect or increase the obligations of any Credit Party to the same extent;
(ii) payment by a Loan Party of its Original Obligations to Administrative Agent and the relevant Secured Party shall to Lenders under the same extent decrease and be a good discharge Credit Documents in respect of the Parallel Obligations owing by it to liabilities under this Agreement. For the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations under purpose of this subsection 10.12, the Loan Documents, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Administrative Agent acts in its own name and on behalf of itself and not as agent or representative of any other person nor as trustee party hereto and all property subject any security granted to a Lien on Collateral shall the Administrative Agent to secure the Parallel Obligations so owing Debt is granted to the Collateral Administrative Agent in its capacity of as creditor of the Parallel Obligations;Debt as well as any other capacity under the Credit Documents.
(fe) Without limiting or affecting the Administrative Agent's rights against the Credit Parties (whether under this subsection 10.12 or under any other provision of the Credit Documents), the Administrative Agent agrees with each Loan Party irrevocably Lender (on a several and unconditionally waives any right divided basis) that, subject as set out in the next sentence, it may have to require a Secured Party to join any proceedings will not exercise its rights as co-claimant parallel creditor except with the Collateral Agent consent of each Lender. However, for the avoidance of doubt, nothing in respect the previous sentence shall in any way limit the Administrative Agent's right to act in the protection or preservation of rights under, or to enforce any, Credit Document (or to do any claim by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) act reasonably incidental to any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral Agentforegoing).
Appears in 1 contract
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Each Loan Party hereby irrevocably and unconditionally undertakes (such undertaking and the obligations and liabilities which are a result thereof, hereinafter being referred to as its “Parallel Debt”) to pay to the Collateral Administrative Agent as an independent and separate creditor an amount (equal to and in the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing currency of the aggregate amount payable by such Loan Party it to a any Secured Party under or in connection with the Loan Documents as and when the same fall due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Principal Obligations”);
(b) in accordance with the Collateral Agent terms and conditions of such Principal Obligations. The Parallel Debt of each Loan Party shall have become due and payable as and when its own independent right to claim performance Principal Obligations become due and payable. An Event of the Parallel Obligations (including, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting Default in respect of any kind the Principal Obligations shall constitute a default (verzuim) within the meaning of insolvency proceedings) and section 3:248 of the Netherlands Civil Code with respect to the Parallel Obligations shall not constitute the Collateral Agent and Debt without any Secured Party as joint creditors;
(c) the Parallel Obligations shall not limit or affect the existence notice being required. Each of the Original Obligations for which the Secured Loan Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
acknowledges that (i) the Parallel Debt of each Loan Party (a) constitutes an undertaking, obligation and liability of such Loan Party to the Administrative Agent (in its personal capacity and not in its capacity as agent) which is separate and independent from, and without prejudice to, its Principal Obligations and (b) represents the Administrative Agent’s own claim to receive payment of such Parallel Debt from such Loan Party and (ii) the Collateral created under the Loan Documents to secure the Parallel Debt is granted to the Administrative Agent in its capacity as sole creditor of the Parallel Debt. Each of the Loan Parties agrees that (i) the Parallel Debt of each Loan Party shall be decreased if and to the extent that its Principal Obligations have been paid or in the Collateral Agent receives case of guarantee obligations discharged, (and retainsii) and applies any payment against the discharge Principal Obligations of its Parallel Obligations to the Collateral Agent and the Original Obligations each Loan Party shall be decreased if and to the same extent;
(ii) payment by a Loan Party extent that its Parallel Debt has been paid or in the case of its Original Obligations to the relevant Secured Party shall to the same extent decrease guarantee obligations discharged, and be a good discharge of the Parallel Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is the amount payable under the Parallel Debt of each Loan Party shall at no time exceed the amount payable under its Principal Obligations. Any amount received or recovered by the Administrative Agent in respect of a Parallel Debt (including, but not limited to, enforcement proceeds) shall be applied in accordance with the terms of this Agreement subject to limitations (if any) expressly provided for in any limitations under Security Document. For the Loan Documentspurpose of this Section 9.9, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Administrative Agent acts in its own name on behalf of and for itself and not as agent agent, trustee or representative of any other person nor as trustee and all property subject Secured Party. For purposes of any Netherlands Security Document any resignation by the Administrative Agent is not effective with respect to a Lien on Collateral shall secure its rights under the Parallel Obligations so owing Debt until all rights and obligations under the Parallel Debt have been assigned and assumed to the Collateral successor agent. The Administrative Agent will reasonably cooperate in assigning its capacity of creditor of rights and obligations under the Parallel Obligations;
(f) each Debt to any such successor agent and will reasonably cooperate in transferring all rights and obligations under any Netherlands Security Document to such successor agent. The Administrative Agent is hereby authorized by the Secured Parties which are a party to this Agreement to execute and deliver any documents necessary or appropriate to create and perfect the rights of pledge created by any Netherlands Security Document. Without prejudice to the provisions of this Agreement and the other Loan Party irrevocably Documents, the parties hereto acknowledge and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant agree with the Collateral Agent in respect creation of any claim Parallel Debt obligations by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns which agrees to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment provide security pursuant to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral AgentNetherlands Security Document.
Appears in 1 contract
Sources: Credit Agreement (Bristow Group Inc)
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Loan Party Subject to any limitations expressly set out in this Agreement, the Company hereby irrevocably and unconditionally undertakes to pay to the Collateral Agent Interim Security Agent, as an independent creditor in its own right and separate creditor an not as representative or trustee of the other Interim Finance Parties, sums equal to and in the currency of each amount (payable by the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing by such Loan Party Company to a Secured Party each of the other Interim Finance Parties under or in connection with each of the Loan Interim Documents as and when the same fall that amount falls due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan relevant Interim Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);.
(b) The Interim Security Agent shall hold the Collateral claims against the Company under the parallel debt structure in this Clause 15.7 in accordance with this Clause 15 (Security). The Interim Security Agent shall distribute any amount received under the parallel debt claims in this Clause 15.7 among the Interim Finance Parties in accordance with the provisions of this Agreement.
(c) The Interim Security Agent shall have its own independent right to claim performance demand payment of the Parallel Obligations (includingamounts payable by the Company under this Clause 15.7, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect of any kind of insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;
(c) the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) aboveprovided that:
(i) the Parallel Obligations amounts for which the Company is liable under its parallel debt:
(A) shall be decreased to the extent that its corresponding debt towards an Interim Finance Party has been irrevocably paid (or, in the Collateral Agent receives case of guarantee obligations, discharged); or
(and retainsB) and applies any payment against the discharge of its Parallel Obligations shall be increased to the Collateral Agent and extent that the Original Obligations corresponding debt towards an Interim Finance Party has been increased;
(ii) the corresponding debt of the Company shall be decreased to the same extent;
extent that its parallel debt has been irrevocably paid (ii) payment by a Loan Party or, in the case of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge of the Parallel Obligations owing by it to the Collateral Agentguarantee obligations, discharged); and
(iii) if any Original Obligation is subject to any limitations under the Loan Documents, then parallel debt of the same limitations Company shall apply mutatis mutandis not exceed its corresponding debt towards the Interim Finance Parties.
(d) Any amount due and payable by the Company to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Interim Security Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery Clause 15.7 shall be decreased to the Collateral extent that the other Interim Finance Parties have received payment of the corresponding amount under the other provisions of the Interim Documents and any amount due and payable by the Company to the other Interim Finance Parties under those provisions shall be decreased to the extent that the Interim Security Agent has received payment of the corresponding amount under this Clause 15.7. The rights of the Interim Finance Parties (other than the Interim Security Agent) to receive payment of amounts payable by the Company under the Interim Documents are several and are separate and independent from, and without prejudice to, the rights of the Interim Security Agent to receive payment under this Clause 15.7.
Appears in 1 contract
Sources: Interim Facility Agreement
Parallel Debt. For (covenant to pay the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or Agent)
27.2.1 Notwithstanding any other jurisdiction in which an effective Lien cannot be granted in favor provision of this Agreement, the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Loan Party Borrower hereby irrevocably and unconditionally undertakes to pay to the Collateral Agent Security Agent, as an independent creditor in its own right and separate creditor an not as representative of the other Secured Parties, sums equal to and in the currency of each amount (payable by the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing by such Loan Party Borrower to a each of the Secured Party Parties under or in connection with each of the Loan Finance Documents as and when the same fall that amount falls due for payment under the relevant Finance Document or in connection with the Loan Documents (including, would have fallen due but for the avoidance any discharge resulting from failure of doubt, any change, extension or increase in those obligations pursuant another Secured Party to or in connection with any amendment or supplement or restatement or novation of any Loan Documenttake appropriate steps, in each case whether or not anticipated as of insolvency proceedings affecting the date of this Agreement) and (ii) any amount which such Loan Party owes Borrower, to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);preserve its entitlement to be paid that amount.
(b) the Collateral 27.2.2 The Security Agent shall have its own independent right to claim performance demand payment of the Parallel Obligations (including, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect amounts payable by the Borrower under this Clause 27.2 irrespective of any kind of insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;
(c) the Parallel Obligations shall not limit or affect the existence discharge of the Original Obligations for which Borrower’s obligation to pay those amounts to the other Secured Parties shall have an independent right resulting from failure by them to demand payment;take appropriate steps, in insolvency proceedings affecting the Borrower, to preserve their entitlement to be paid those amounts.
(d) notwithstanding clauses (b) 27.2.3 Any amount due and (c) above:
(i) payable by the Parallel Obligations Borrower to the Security Agent under this Clause 27.2 shall be decreased to the extent that the Collateral Agent receives other Secured Parties have received (and retainsare able to retain) payment in full of the corresponding amount under the other provisions of the Finance Documents and applies any payment against amount due and payable by the discharge of its Parallel Obligations Borrower to the Collateral Agent and the Original Obligations other Secured Parties under those provisions shall be decreased to the same extent;
extent that the Security Agent has received (iiand is able to retain) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge in full of the Parallel Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations under the Loan Documents, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party amount under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral Agent.Clause 27.2. Facility Agreement _Powerfleet_ 94
Appears in 1 contract
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) Subject to the limitations set out in each Loan Party guarantee and notwithstanding any other provision of this Agreement, each Obligor hereby irrevocably and unconditionally undertakes to pay to the Collateral Agent Interim Security Agent, as an independent creditor in its own right and separate creditor an not as representative or trustee of the other Interim Finance Parties, sums equal to and in the currency of each amount (payable by that Obligor to each of the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing by such Loan Party to a Secured Party other Interim Finance Parties under or in connection with each of the Loan Interim Finance Documents as and when the same fall that amount falls due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan relevant Interim Finance Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);.
(b) The Interim Security Agent shall hold the Collateral claims against the Obligors under the parallel debt structure in this Clause 14.9 in accordance with Clause 15.11 (Role of the Interim Security Agent). The Interim Security Agent shall distribute any amount received under the parallel debt claims in this Clause 14.9 among the Interim Finance Parties in accordance with the provisions of this Agreement.
(c) The Interim Security Agent shall have its own independent right to claim performance demand payment of the Parallel Obligations (includingamounts payable by an Obligor under this Clause 14.9, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect irrespective of any kind discharge of that Obligor's obligation to pay those amounts to the other Interim Finance Parties resulting from failure by them to take appropriate steps, in insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;
(c) the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right proceedings affecting that Obligor, to demand payment;
(d) notwithstanding clauses (b) and (c) abovepreserve their entitlement to be paid those amounts, provided that:
(i) the Parallel Obligations amounts for which each Obligor is liable under its parallel debt:
(A) shall be decreased to the extent that its corresponding debt towards an Interim Finance Party has been irrevocably paid (or, in the Collateral Agent receives case of guarantee obligations, discharged); or
(and retainsB) and applies any payment against the discharge of its Parallel Obligations shall be increased to the Collateral Agent and extent that the Original Obligations corresponding debt towards an Interim Finance Party has been increased;
(ii) the corresponding debt of each Obligor shall be decreased to the same extent;
extent that its parallel debt has been irrevocably paid (ii) payment by a Loan Party or, in the case of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge of the Parallel Obligations owing by it to the Collateral Agentguarantee obligations, discharged); and
(iii) if any Original Obligation is subject to any limitations under the Loan Documents, then parallel debt of an Obligor shall not exceed its corresponding debt towards the same limitations shall apply mutatis mutandis Interim Finance Parties.
(d) Any amount due and payable by an Obligor to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Interim Security Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery Clause 14.9 shall be decreased to the Collateral extent that the other Interim Finance Parties have received payment of the corresponding amount under the other provisions of the Interim Finance Documents and any amount due and payable by an Obligor to the other Interim Finance Parties under those provisions shall be decreased to the extent that the Interim Security Agent has received payment of the corresponding amount under this Clause 14.9. The rights of the Interim Finance Parties (other than the Interim Security Agent) to receive payment of amounts payable by each Obligor under the Interim Finance Documents are several and are separate and independent from, and without prejudice to, the rights of the Interim Security Agent to receive payment under this Clause 14.9.
Appears in 1 contract
Sources: Commitment Letter
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Each Loan Party hereby irrevocably and unconditionally undertakes (such undertaking and the obligations and liabilities which are a result thereof, hereinafter being referred to as its “Parallel Debt”) to pay to the Collateral Administrative Agent as an independent and separate creditor an amount (equal to and in the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing currency of the aggregate amount payable by such Loan Party it to a any Secured Party under or in connection with the Loan Documents as and when the same fall due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Principal Obligations”);
(b) in accordance with the Collateral Agent terms and conditions of such Principal Obligations. The Parallel Debt of each Loan Party shall have become due and payable as and when its own independent right to claim performance Principal Obligations become due and payable. An Event of the Parallel Obligations (including, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting Default in respect of any kind the Corresponding Liabilities shall constitute a default (verzuim) within the meaning of insolvency proceedings) and section 3:248 of the Netherlands Civil Code with respect to the Parallel Obligations shall not constitute the Collateral Agent and Liabilities without any Secured Party as joint creditors;
(c) the Parallel Obligations shall not limit or affect the existence notice being required. Each of the Original Obligations for which the Secured Loan Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
acknowledges that (i) the Parallel Debt of each Loan Party (a) constitutes an undertaking, obligation and liability of such Loan Party to the Administrative Agent (in its personal capacity and not in its capacity as agent) which is separate and independent from, and without prejudice to, its Principal Obligations and (b) represents the Administrative Agent’s own claim to receive payment of such Parallel Debt from such Loan Party and (ii) the Collateral created under the Loan Documents to secure the Parallel Debt is granted to the Administrative Agent in its capacity as sole creditor of the Parallel Debt. Each of the Loan Parties agrees that (i) the Parallel Debt of each Loan Party shall be decreased if and to the extent that its Principal Obligations have been paid or in the Collateral Agent receives case of guarantee obligations discharged, (and retainsii) and applies any payment against the discharge Principal Obligations of its Parallel Obligations to the Collateral Agent and the Original Obligations each Loan Party shall be decreased if and to the same extent;
(ii) payment by a Loan Party extent that its Parallel Debt has been paid or in the case of its Original Obligations to the relevant Secured Party shall to the same extent decrease guarantee obligations discharged, and be a good discharge of the Parallel Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is the amount payable under the Parallel Debt of each Loan Party shall at no time exceed the amount payable under its Principal Obligations. Any amount received or recovered by the Administrative Agent in respect of a Parallel Debt (including, but not limited to, enforcement proceeds) shall be applied in accordance with the terms of this Agreement subject to limitations (if any) expressly provided for in any limitations under Security Document. For the Loan Documentspurpose of this Section 9.9, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Administrative Agent acts in its own name on behalf of and for itself and not as agent agent, trustee or representative of any other person nor as trustee and all property subject Secured Party. For purposes of any Netherlands Security Document any resignation by the Administrative Agent is not effective with respect to a Lien on Collateral shall secure its rights under the Parallel Obligations so owing Debt until all rights and obligations under the Parallel Debt have been assigned and assumed to the Collateral successor agent. The Administrative Agent will reasonably cooperate in assigning its capacity of creditor of rights and obligations under the Parallel Obligations;
(f) each Liabilities to any such successor agent and will reasonably cooperate in transferring all rights and obligations under any Netherlands Security Document to such successor agent. The Administrative Agent is hereby authorized by the Secured Parties which are a party to this Agreement to execute and deliver any documents necessary or appropriate to create and perfect the rights of pledge created by any Netherlands Security Document. Without prejudice to the provisions of this Agreement and the other Loan Party irrevocably Documents, the parties hereto acknowledge and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant agree with the Collateral Agent in respect creation of any claim Parallel Debt obligations by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns which agrees to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment provide security pursuant to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral AgentNetherlands Security Document.
Appears in 1 contract
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) Notwithstanding any other provision of this Agreement, each Loan Party of the Company and each Guarantor (each, a “Principal Party”) hereby irrevocably and unconditionally undertakes (such undertaking and the obligations and liabilities that are a result thereof being referred to as the “Parallel Debt” of such Principal Party) to pay to the Collateral Administrative Agent (in its personal capacity and not in its capacity as an independent and separate creditor agent) an amount (equal to the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing aggregate amount payable by such Loan Principal Party in respect of each and every payment obligation owed to a each and every Secured Party under the Loan Documents and, to the extent included in the Obligations, under any Hedging Agreement or arising out of or in connection with Cash Management Services or Performance Support Instruments provided by any Secured Party (collectively, the Loan Documents “Principal Obligations”) in accordance with the terms and conditions of such Principal Obligations. The Parallel Debt of any Principal Party shall become due and payable as and when the same fall any Principal Obligation of such Principal Party becomes due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);payable.
(b) the Collateral Agent shall have its own independent right to claim performance of the Parallel Obligations (including, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect of any kind of insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral The Administrative Agent and any Secured each Principal Party as joint creditors;
(c) the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) agree and (c) aboveacknowledge that:
(i) the Parallel Obligations Debt of each Principal Party constitutes an undertaking, obligation and liability of such Principal Party to the Administrative Agent (in its personal capacity and not in its capacity as agent) that is separate and independent from, and without prejudice to, any Principal Obligation and represents the Administrative Agent’s own claim as a creditor in its own right to receive payment of such Parallel Debt from such Principal Party (and for the avoidance of doubt, for purposes of Netherlands law, the Parallel Debt of each Principal Party constitutes independent claims (zelfstandige vorderingen) of the Administrative Agent vis-à-vis each Principal Party); and
(ii) the security interest created under the Loan Documents to secure the Parallel Debt is granted to the Administrative Agent in its capacity as sole creditor of the Parallel Debt and, for purposes of Netherlands law, each Principal Party and the Administrative Agent acknowledge that the Administrative Agent acts in its own name and not as representative (vertegenwoordiger) of the Secured Parties or any of them.
(c) The Administrative Agent and each Principal Party agree and acknowledge that:
(i) the Parallel Debt of each Principal Party shall be decreased if and to the extent that the Collateral Agent receives (and retains) and applies any payment against Principal Obligations of such Principal Party have been paid or, in the discharge case of its Parallel Obligations to the Collateral Agent and the Original Obligations shall be decreased to the same extentguarantee obligations, discharged;
(ii) payment by a Loan the Principal Obligations of each Principal Party of its Original Obligations shall be decreased if and to the relevant Secured Party shall to the same extent decrease and be a good discharge of that the Parallel Obligations owing by it to Debt of such Principal Party has been paid or, in the Collateral Agentcase of guarantee obligations, discharged; and
(iii) if any Original Obligation is subject to any limitations the amount payable under the Loan Documents, then Parallel Debt of each Principal Party shall at no time exceed the same limitations shall apply mutatis mutandis to amount payable under the relevant Parallel Obligation corresponding to that Original Obligation;Principal Obligations of such Principal Party.
(ed) Any amount received or recovered by the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Administrative Agent in respect of any claim Parallel Debt (including as a result of any enforcement proceedings) shall be applied in accordance with the terms of this Agreement and the other Security Documents.
(e) The Administrative Agent accepts the provisions of this clause 8.16 (Parallel Debt) on behalf of the Secured Parties.
(f) The rights of the Secured Parties (other than the Administrative Agent) to receive payment of amounts payable by each Principal Party under the Collateral Principal Obligations are several and are separate and independent from, and without prejudice to, the rights of the Administrative Agent against a Loan Party to receive payment under this Section 9.24;
(g) 8.16 and each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party Principal Party’s obligations under this Section 9.23 will not affect 8.16 toward the Administrative Agent constitutes a single and separate obligation from any claim other debt or obligation of a Secured Party against such Loan each Principal Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral AgentPrincipal Obligations.
Appears in 1 contract
Parallel Debt. For (a) Without prejudice to the provisions of this Agreement and the Security Documents and for the purpose of taking preserving the initial and ensuring the continuing validity of each Lien on the security interests in the Collateral granted under any Security Documents governed and to be granted by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Loan Party irrevocably and unconditionally undertakes to pay Parties to the Collateral Agent as an independent and separate creditor (or any sub-agent thereof) for the benefit of any Secured Parties, an amount (equal to and in the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing same currency as the Obligations from time to time due by such Loan Party to a Secured Party under or in connection accordance with the Loan Documents as terms and when the same fall due for payment under or in connection with conditions of the Loan Documents (includingDocuments, including for the avoidance of doubt, any changelimitations set forth therein, extension shall be owing as separate and independent obligations of such Loan Party to the Collateral Agent (or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation sub-agent thereof) for the benefit of any Secured Parties (such payment undertaking and the obligations and liabilities which are the result thereof the “Parallel Debt”).
(b) Each Loan DocumentParty and the Collateral Agent (and any sub-agent thereof) acknowledge that (i) for this purpose the Parallel Debt constitutes undertakings, in obligations and liabilities of each case whether or not anticipated as of Loan Party to the date of this AgreementCollateral Agent (and any sub-agent thereof) under the Loan Documents which are separate and independent from, and without prejudice to, the corresponding Obligations under the Loan Documents which such Loan Party has to the Secured Parties and (ii) that the Parallel Debt represents the Collateral Agent’s (including any sub-agent thereof) own claims to receive payment of the Parallel Debt; provided that the total amount which such may become due under the Parallel Debt shall never exceed the total amount which may become due under the Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidityDocuments; provided, illegalityfurther, or unenforceability of a Loan Document (the “Original Obligations”);
(b) that the Collateral Agent or any sub-agent thereof shall have exercise its own independent right rights with respect to claim performance the Parallel Debt solely in accordance with this Agreement and any other Loan Document.
(c) Every payment of monies made by a Loan Party to the Collateral Agent or any sub-agent thereof shall (conditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, liquidation or similar laws of Table of Contents general application) be in satisfaction pro tanto of the Parallel Obligations (including, without limitation, covenant by such Grantor contained in Section 12.11(a); provided that if any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect such payment as is mentioned above is subsequently avoided or reduced by virtue of any kind provisions or enactments relating to bankruptcy, liquidation or similar laws of insolvency proceedings) and the Parallel Obligations shall not constitute general application the Collateral Agent and any Secured sub-agent thereof shall be entitled to receive the amount of such payment from such Loan Party as joint creditors;
(c) and such Loan Party shall remain liable to perform the Parallel Obligations relevant obligation and the relevant liability shall be deemed not limit or affect the existence of the Original Obligations for which the Secured Parties shall to have an independent right to demand payment;been discharged.
(d) notwithstanding clauses (b) and Subject to the provision in paragraph (c) aboveof this Section 12.11, but notwithstanding any of the other provisions of this Section 12.11:
(i) the total amount due and payable as Parallel Obligations Debt under this Section 12.11 shall be decreased to the extent the Collateral Agent receives (and retains) and applies that a Loan Party shall have paid any payment against the discharge of its Parallel Obligations amounts to the Collateral Agent and the Original Obligations shall be decreased to the same extent;
(iior any sub-agent thereof) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge on behalf of the Parallel applicable Secured Parties or any of them to reduce the outstanding principal amount of the applicable Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations under the Loan Documents, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to or the Collateral Agent in its own name (or any sub-agent thereof) on behalf of itself and not as agent or representative the applicable Secured Parties otherwise receives any amount in payment of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel such Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) to the extent that a Loan Parties shall have paid any defect affecting a claim amounts to the Collateral Agent (or any sub-agent thereof) under the Parallel Debt owed to it or the Collateral Agent (or any sub-agent thereof) shall have otherwise received monies in payment of a Secured Party against any Loan Party the Parallel Debt owed to it, the total amount due and payable under or in connection with the Loan Documents will not affect any claim shall be decreased as if said amounts were received directly in payment of the applicable Obligations.
(e) In the event of a resignation of the Collateral Agent under this Section 9.23; and
(h) if or any of its sub-agents or the appointment of a new Collateral Agent returns or sub-agent pursuant to this Agreement, the retiring or replaced Collateral Agent or sub-agent shall (i) assign the Parallel Debt owed to it (but not by way of novation) and (ii) transfer any Loan PartyCollateral granted to it securing such Parallel Debt, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery each case to the successor Collateral AgentAgent or sub-agent, as applicable.
Appears in 1 contract
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Each Loan Party hereby irrevocably and unconditionally undertakes (such undertaking and the obligations and liabilities which are a result thereof, hereinafter being referred to as its “Parallel Debt”) to pay to the Collateral Administrative Agent as an independent and separate creditor an amount (equal to and in the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing currency of the aggregate amount payable by such Loan Party it to a any Secured Party under or in connection with the Loan Documents as and when the same fall due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Principal Obligations”);
(b) in accordance with the Collateral Agent terms and conditions of such Principal Obligations. The Parallel Debt of each Loan Party shall have become due and payable as and when its own independent right to claim performance Principal Obligations become due and payable. An Event of the Parallel Obligations (including, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting Default in respect of any kind the Principal Obligations shall constitute a default (verzuim) within the meaning of insolvency proceedings) and section 3:248 of the Netherlands Civil Code with respect to the Parallel Obligations shall not constitute the Collateral Agent and Debt without any Secured Party as joint creditors;
(c) the Parallel Obligations shall not limit or affect the existence notice being required. Each of the Original Obligations for which the Secured Loan Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
acknowledges that (i) the Parallel Debt of each Loan Party (a) constitutes an undertaking, obligation and liability of such Loan Party to the Administrative Agent (in its personal capacity and not in its capacity as agent) which is separate and independent from, and without prejudice to, its Principal Obligations and (b) represents the Administrative Agent’s own claim to receive payment of such Parallel Debt from such Loan Party and (ii) the Collateral created under the Loan Documents to secure the Parallel Debt is granted to the Administrative Agent in its capacity as sole creditor of the Parallel Debt. Each of the Loan Parties agrees that (i) the Parallel Debt of each Loan Party shall be decreased if and to the extent that its Principal Obligations have been paid or in the Collateral Agent receives case of guarantee obligations discharged, (and retainsii) and applies any payment against the discharge Principal Obligations of its Parallel Obligations to the Collateral Agent and the Original Obligations each Loan Party shall be decreased if and to the same extent;
(ii) payment by a Loan Party extent that its Parallel Debt has been paid or in the case of its Original Obligations to the relevant Secured Party shall to the same extent decrease guarantee obligations discharged, and be a good discharge of the Parallel Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is the amount payable under the Parallel Debt of each Loan Party shall at no time exceed the amount payable under its Principal Obligations. Any amount received or recovered by the Administrative Agent in respect of a Parallel Debt (including, but not limited to, enforcement proceeds) shall be applied in accordance with the terms of this Agreement subject to limitations (if any) expressly provided for in any limitations under Security Document. For the Loan Documentspurpose of this Section 9.9, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Administrative Agent acts in its own name on behalf of and for itself and not as agent agent, trustee or representative of any other person nor as trustee and all property subject Secured Party. For purposes of any Netherlands Security Document any resignation by the Administrative Agent is not effective with respect to a Lien on Collateral shall secure its rights under the Parallel Obligations so owing Debt until all rights and obligations under the Parallel Debt have been assigned and assumed to the Collateral successor agent. The Administrative Agent will reasonably cooperate in assigning its capacity of creditor of rights and obligations under the Parallel Obligations;
(f) each Liabilities to any such successor agent and will reasonably cooperate in transferring all rights and obligations under any Netherlands Security Document to such successor agent. The Administrative Agent is hereby authorized by the Secured Parties which are a party to this Agreement to execute and deliver any documents necessary or appropriate to create and perfect the rights of pledge created by any Netherlands Security Document. Without prejudice to the provisions of this Agreement and the other Loan Party irrevocably Documents, the parties hereto acknowledge and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant agree with the Collateral Agent in respect creation of any claim Parallel Debt obligations by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns which agrees to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment provide security pursuant to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral AgentNetherlands Security Document.
Appears in 1 contract
Sources: Superpriority Secured Debtor in Possession Credit Agreement (Bristow Group Inc)
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated ina) Switzerland or Notwithstanding any other jurisdiction in which an effective Lien cannot be granted in favor provision of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) , with respect to the Obligations of the Company under the Loan Documents, each Loan Party that is a Domestic Subsidiary of the Company hereby irrevocably and unconditionally undertakes to pay to the Collateral Agent Administrative Agent, as an independent creditor in its own right and separate creditor an not as representative of the other Secured Parties, sums equal to and in the currency of each amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing payable by such Loan Party to a each of the Secured Party Parties in respect of the Obligations of the Company under or in connection with each of the Loan Documents as and when the same fall that amount falls due for payment under the relevant Loan Document or would have fallen due but for any discharge resulting from failure of another Secured Party to take appropriate steps, in connection with insolvency proceedings affecting such Loan Party or any Domestic Subsidiary thereof, to preserve its entitlement to be paid that amount (the obligations of the Loan Documents Parties described in this paragraph being referred to as the “Parallel Debt A”).
(including, for the avoidance of doubt, b) Notwithstanding any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation other provision of any Loan Document, in each case whether or not anticipated as with respect to the Obligations of the date Dutch Borrower under the Loan Documents, each Loan Party hereby irrevocably and unconditionally undertakes to pay to the Administrative Agent, as creditor in its own right and not as representative of this Agreement) the other Secured Parties, sums equal to and (ii) any in the currency of each amount which payable by such Loan Party owes to a each of the Secured Party Parties in respect of the Obligations of the Dutch Borrower under each of the Loan Documents and Secured Hedge Agreements as a result of a party rescinding a and when that amount falls due for payment under the relevant Loan Document or as a result Secured Hedge Agreements or would have fallen due but for any discharge resulting from failure of invalidityanother Secured Party to take appropriate steps, illegalityin insolvency proceedings affecting such Loan Party or any Subsidiary thereof, or unenforceability of a Loan Document to preserve its entitlement to be paid that amount (the obligations of the Loan Parties described in this paragraph being referred to as the “Original ObligationsParallel Debt B” and Parallel Debt A and Parallel Debt B shall be referred to as the “Parallel Debts”);.
(bc) the Collateral The Administrative Agent shall have its own independent right to claim performance demand payment of any Parallel Debt payable by each Loan Party under this Section 9.14, irrespective of any discharge of the Parallel Obligations obligation of such Loan Party to pay those amounts to the other Secured Parties resulting from failure by them to take appropriate steps, in insolvency proceedings affecting such Loan Party or any Subsidiary thereof, to preserve their entitlement to be paid those amounts.
(including, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting d) Any amount in respect of any kind of insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;
(c) the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which Administrative Agents Parallel Debts due and payable by a Loan Party to the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations Administrative Agent under this Section 9.14 shall be decreased to the extent that any of the Collateral Agent receives other Secured Parties have received (and retains) and applies any payment against the discharge of its Parallel Obligations have not returned or repaid to the Collateral Agent relevant Loan Party) payment in full of the corresponding amount under the other provisions of the Loan Documents, Secured Hedge Agreements or Secured Cash Management Agreements and any amount due and payable by such Loan Party to the Original Obligations other Secured Parties under those provisions shall be decreased to the same extent;extent that the Administrative Agent has received payment in full of the corresponding amount in respect of its Parallel Debt under this Section 9.14 against such Loan Party. Each Secured Party hereby expressly and irrevocably authorizes the Collateral Agent to agree (for and on behalf of such Secured Party) to any provision on terms equivalent to the preceding sentence for the purpose of any parallel debt provision of any Loan Party in any other Loan Document, including (without limitation) any Guaranty, and agrees to be equally bound by such provision in such other Loan Document.
(iie) Subject to the foregoing provisions of this Section 9.14, the rights of the Secured Parties (other than the Administrative Agent) to receive payment of amounts payable by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge of the Parallel Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations under the Loan Documents, then Secured Hedge Agreements or Secured Cash Management Agreements are several and are separate and independent from, and without prejudice to, the same limitations shall apply mutatis mutandis rights of the Administrative Agent to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative receive payment of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the of its Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent Debt against any Loan Party under this Section 9.23 will 9.14.
(f) For purposes of this Section, the Administrative Agent acts in its own name and not affect as agent, representative or trustee of any claim of a the Secured Party against such Loan Party under Parties and neither its claims in respect of any Parallel Debt nor security in respect of these claims shall be held on trust.
(g) All amounts received or recovered by the Administrative Agent in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party9.14, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral Agentextent permitted by applicable law, shall be applied in accordance with Section 8.03.
Appears in 1 contract
Sources: Credit Agreement (Om Group Inc)
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) each Loan Each Credit Party hereby irrevocably and unconditionally undertakes to pay to Collateral Agent, as creditor in its own right and not as representative of the Collateral Agent as an independent other Secured Parties, sums equal to and separate creditor an in the currency of each amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing payable by such Loan Credit Party to a each of the Secured Party Parties under or in connection with each of the Loan Documents as and when the same fall due for payment under or in connection with the Loan Credit Documents (includingin each case excluding, for the avoidance of doubtdoubt and in order to avoid double-counting, the obligations under any change, extension parallel debt provision set out in any Credit Document) as and when that amount falls due for payment under the relevant Credit Document or increase in those obligations pursuant would have fallen due but for any discharge resulting from failure of another Secured Party to or in connection with any amendment or supplement or restatement or novation of any Loan Documenttake appropriate steps, in each case whether insolvency proceedings affecting such Credit Party or not anticipated as any Subsidiary thereof, to preserve its entitlement to be paid that amount (the obligations of the date Credit Parties described in this paragraph being referred to as the “Parallel Debt”).
(b) The parties to this Agreement hereby acknowledge and agree that (i) the Parallel Debt constitutes undertakings, obligations and liabilities of this Agreement) the Credit Parties to Collateral Agent which are separate and independent from, and without prejudice to, the Obligations which any Credit Party has to any Secured Party and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);
(b) the Collateral Agent shall have its own independent right to claim performance demand payment of the Parallel Obligations (includingDebt payable by each Credit Party under this Section 11.24, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect irrespective of any kind discharge of the corresponding obligation of such Credit Party to pay those amounts to any other Secured Party resulting from failure by them to take appropriate steps, in insolvency proceedings) and proceedings affecting such Credit Party or any Subsidiary thereof, to preserve their entitlement to be paid those amounts; provided that the total amount which may become due under the Parallel Debt by the Credit Parties under this Section 11.24(b) shall never exceed the total amount which may become due with respect to all Secured Obligations shall not constitute of the Collateral Agent and any Credit Parties owed to the Secured Party as joint creditors;Parties.
(c) the Any amount in respect of its Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right Debt due and payable by a Credit Party to demand payment;
(d) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations Collateral Agent under this Section 11.24 shall be decreased to the extent that any of the Collateral Agent receives other Secured Parties have received (and retains) are entitled to keep and applies any payment against the discharge of its Parallel Obligations have not returned or repaid to the Collateral Agent relevant Credit Party) payment in full of the corresponding amount under the other provisions of the Credit Documents and any amount due and payable by such Credit Party to the Original Obligations other Secured Parties under those provisions shall be decreased to the same extent;
(ii) extent that Collateral Agent has applied in satisfaction thereof any amounts received as payment by a Loan Party of its Original Obligations in relation to the relevant Secured Party shall to the same extent decrease and be a good discharge corresponding amount in respect of the Parallel Obligations owing by it Debt of such Credit Party under this Section 11.24.
(d) Subject to the foregoing provisions of this Section 11.24, the rights of the Secured Parties (other than Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations receive payment of amounts payable by a Credit Party under the Loan DocumentsCredit Documents are several and are separate and independent from, then and without prejudice to, the same limitations shall apply mutatis mutandis rights of Collateral Agent to receive payment of the relevant Parallel Obligation corresponding to that Original Obligation;Debt of such Credit Party under this Section 11.24.
(e) the Parallel Obligations are owed to the For purposes of this Section, Collateral Agent acts in its own name on behalf of itself and not as agent agent, representative or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Secured Parties and its claims in respect of each Parallel Obligations;Debt shall not be held on trust.
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the All monies received or recovered by Collateral Agent in respect pursuant to this Section 11.24 and all amounts received or recovered by Collateral Agent from or by the enforcement of any claim by Lien granted to secure the Collateral Agent against a Loan Party under Parallel Debt shall be applied in accordance with this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral AgentAgreement.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (AVG Technologies N.V.)
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) Notwithstanding any other provision of this Agreement, each Loan Party Obligor hereby irrevocably and unconditionally undertakes to pay to the Collateral Agent Security Agent, as an independent creditor in its own right and separate creditor an not as representative of the other Finance Parties, sums equal to and in the currency of each amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing payable by such Loan Party Obligor to a Secured Party each of the Finance Parties under or in connection with each of the Loan Finance Documents as and when the same fall that amount falls due for payment under the relevant Finance Document or in connection with the Loan Documents (including, would have fallen due but for the avoidance any discharge resulting from failure of doubt, any change, extension or increase in those obligations pursuant another Finance Party to or in connection with any amendment or supplement or restatement or novation of any Loan Documenttake appropriate steps, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes insolvency proceedings affecting that Obligor, to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);preserve its entitlement to be paid that amount.
(b) the Collateral The Security Agent shall have its own independent right to claim performance demand payment of the Parallel Obligations (includingamounts payable by each Obligor under this Clause 27.17, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect irrespective of any kind discharge of such Obligor's obligation to pay those amounts to the other Finance Parties resulting from failure by them to take appropriate steps, in insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;proceedings affecting that Obligor, to preserve their entitlement to be paid those amounts.
(c) Any amount due and payable by an Obligor to the Security Agent under this Clause 27.17 (Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(dDebt) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations shall be decreased to the extent that the Collateral Agent receives other Finance Parties have received (and retainsare able to retain) payment in full of the corresponding amount under the other provisions of the Finance Documents and applies any payment against the discharge of its Parallel Obligations amount due and payable by an Obligor to the Collateral Agent and the Original Obligations other Finance Parties under those provisions shall be decreased to the same extent;
extent that the Security Agent has received (iiand is able to retain) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge in full of the Parallel Obligations owing by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations under the Loan Documents, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party amount under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral AgentClause 27.17.
Appears in 1 contract
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) Subject to the limitations set forth in Section 2.07 of the Guarantee Agreement, each Loan Party hereby irrevocably and unconditionally undertakes (and to the extent necessary undertakes in advance) to pay to the Collateral Agent as an independent and separate creditor an amount (the “Parallel Obligations”) amounts equal to: (i) all present and future, actual or contingent to any amounts owing from time to time by such Loan Party (taking into account the limitations set forth in Section 2.07 of the Guarantee Agreement) to a any Secured Party under or in connection with the this Agreement and any other Loan Documents Document pursuant to any Obligations as and when the same fall those amounts are due for payment under or in connection with the Loan Documents (including, for the avoidance of doubt, any change, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);.
(b) the The Collateral Agent shall have its own independent right to claim performance demand payment of the Parallel Obligations (including, without limitation, any suit, execution, enforcement of security, recovery of guarantees Debt by the Loan Party. Each Loan Party and applications for and voting in respect of any kind of insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent acknowledge that the obligations of each Loan Party under this Section 8.16 are several, separate and any Secured Party as joint creditors;
independent (cselbständiges Schuldanerkenntnis) the Parallel Obligations from, and shall not in any way limit or affect affect, the existence corresponding obligations of each Loan Party under this Agreement or any other Loan Document (“Corresponding Debt”) nor shall the Original Obligations amounts for which the Secured Parties shall have an independent right to demand payment;
each Loan Party is liable under paragraph (da) notwithstanding clauses above (bits “Parallel Debt”) and (c) abovebe limited or affected in any way by its Corresponding Debt provided that:
(i) the Parallel Obligations Debt of each Loan Party shall be decreased to the extent that its Corresponding Debt has been irrevocably paid or discharged (other than, in each case, contingent obligations);
(ii) the Collateral Agent receives (and retains) and applies any payment against the discharge Corresponding Debt of its Parallel Obligations to the Collateral Agent and the Original Obligations each Loan Party shall be decreased to the same extentextent that its Parallel Debt has been irrevocably paid or discharged;
(iiiii) payment by the amount of the Parallel Debt of a Loan Party shall at all times be equal to the amount of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge of the Parallel Obligations owing by it to the Collateral AgentCorresponding Debt; and
(iiiiv) if any Original Obligation is subject to any limitations under for the Loan Documentsavoidance of doubt, then the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf Debt of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of will become due and payable at the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral Agentsame time when its Corresponding Debt becomes due and payable.
Appears in 1 contract
Sources: Amendment Agreement (Momentive Performance Materials Inc.)
Parallel Debt. For (a) Without prejudice to the provisions of this Indenture, the Security Documents and the Collateral Trust Deed and for the purpose of taking preserving the initial and ensuring the continuing validity of each Lien on the Collateral Liens granted under any Security Documents governed and to be granted by the laws of (or Issuer and each Guarantor to the extent affecting assets situated in) Switzerland or any other jurisdiction Security Agent, an amount equal to and in which an effective Lien cannot be granted in favor the same currency of the Collateral Agent as trustee obligations under the Notes and the Guarantee from time to time due by the Issuer or agent for the Secured Parties, notwithstanding any contrary provision such Guarantor in any Loan Document:
(a) each Loan Party irrevocably and unconditionally undertakes to pay to the Collateral Agent as an independent and separate creditor an amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing by such Loan Party to a Secured Party under or in connection accordance with the Loan Documents as terms and when conditions of the same fall due for payment under or in connection with the Loan Documents (includingNote and Guarantee, including for the avoidance of doubt, any changethe limitations set out under Section 11.02, extension or increase in those obligations pursuant to or in connection with any amendment or supplement or restatement or novation of any Loan Document, in each case whether or not anticipated shall be owing as a separate and independent obligation of the date Issuer and each Guarantor to the Security Agent (such payment undertaking and the obligations and liabilities which are the result thereof the “Parallel Debt”). The Issuer, each Guarantor and the Security Agent acknowledge that (i) for this purpose the Parallel Debt constitutes undertakings, obligations and liabilities of the Issuer and each Guarantor to the Security Agent under this Agreement) Indenture, the Security Documents and the Collateral Trust Deed which are separate and independent from, and without prejudice to, the corresponding obligations under the Notes and Guarantee which the Issuer or such Guarantor has to the Holders and (ii) that the Parallel Debt represents the Security Agent’s own independent claims to receive payment of the Parallel Debt irrespective of any discharge of such Issuer and/or Guarantor’s obligation to pay those amounts to the other Secured Parties resulting from failure by such Secured Parties to take appropriate steps, in insolvency proceedings affecting that Issuer and/or Guarantor, to preserve their entitlement to be paid those amounts and for the purposes of this Section 10.07, the Security Agent acts in its own name as a creditor in its own right and not as a trustee or other representative of the other Secured Parties, and its claims in respect of the Parallel Debt shall not be held on trust; provided that the total amount which such Loan Party owes may become due under the Parallel Debt shall never exceed the total amount which may become due under the Notes and Guarantee; provided, further, that the Security Agent shall exercise its rights with respect to a Secured Party as a result of a party rescinding a Loan Document or as a result of invaliditythe Parallel Debt solely in accordance with this Indenture, illegality, or unenforceability of a Loan Document (the “Original Obligations”);Security Documents and the Collateral Trust Deed.
(b) Every payment of monies made by the Collateral Issuer or a Guarantor to the Security Agent shall have its own independent right (conditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to claim performance bankruptcy, insolvency, liquidation or similar laws of general application) be in satisfaction pro tanto of the Parallel Obligations covenant by the Issuer or such Guarantor contained in clause (including, without limitation, a) of this Section 10.07; provided that if any suit, execution, enforcement of security, recovery of guarantees and applications for and voting such payment mentioned in respect clause (a) above is subsequently avoided or reduced by virtue of any kind provisions or enactments relating to bankruptcy, liquidation or similar laws of insolvency proceedings) general application, the Security Agent shall be entitled to receive the amount of such payment from the Issuer or such Guarantor and the Parallel Obligations Issuer or such Guarantor shall remain liable to perform the relevant obligation and the relevant liability shall be deemed not constitute the Collateral Agent and any Secured Party as joint creditors;to have been discharged.
(c) Subject to the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses provisions in clause (b) and of this Section 10.07, but notwithstanding any of the other provisions of this clause (c) above:):
(i1) the total amount due and payable as Parallel Obligations Debt under this Section 10.07 shall be decreased to the extent that the Issuer or a Guarantor shall have paid any amounts to the Security Agent or to the Trustee or to the Agents on behalf of the Holders or any of them to reduce the outstanding principal amount of the Notes or the Security Agent or the Trustee on behalf of the Holders otherwise receives any amount in payment of the Notes and the Guarantee including pursuant to clause 3.2 (Parallel debt) of the Collateral Agent receives (and retains) and applies any payment against the discharge of its Parallel Obligations to the Collateral Agent and the Original Obligations shall be decreased to the same extent;
(ii) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge of the Parallel Obligations owing by it to the Collateral AgentTrust Deed; and
(iii2) if to the extent that the Issuer or a Guarantor shall have paid any Original Obligation is subject amounts to any limitations the Trustee or to the Security Agent or to the Agents under the Loan Documents, then Parallel Debt or the same limitations shall apply mutatis mutandis Trustee or the Security Agent or to the relevant Agents shall have otherwise received monies in payment of the Parallel Obligation corresponding Debt, the total amount due and payable under the Notes and the Guarantee including pursuant to that Original Obligation;clause 3.2 (Parallel debt) of the Collateral Trust Deed shall be decreased as if said amounts were received directly in payment of the Notes and Guarantee.
(d) The rights of the Secured Parties (other than the Security Agent) to receive payments of amounts payable by the Issuer and each Guarantor under the Notes and Guarantee are several and are separate and independent from, and without prejudice to, the rights of the Security Agent to receive payment under this Section 10.07. The Issuer and each Guarantor’s parallel obligation under this Section 10.07 towards the Security Agent constitutes a single and separate obligation from any other debt of the Issuer and each Guarantor under the Notes and the Guarantee, and the Security Agent may enforce any payment obligation under the Parallel Debt in its own name as an independent and separate right, and the Parallel Debt represents the Security Agent’s own claim to receive payment of such Parallel Debt from the Issuer and each Guarantor.
(e) In the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative event of any other person nor as trustee and all property subject to a Lien on Collateral shall secure inconsistency between the Parallel Obligations so owing to the Collateral Agent in its capacity terms of creditor of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim 10.07 and the terms of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with Trust Deed, the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery latter shall prevail to the Collateral Agentextent permissible under applicable law.
Appears in 1 contract
Sources: Indenture (Twist Beauty S.a r.l. & Partners S.C.A.)
Parallel Debt. For the purpose of taking and ensuring the continuing validity of each Lien on the Collateral granted under any Security Documents governed by the laws of (or to the extent affecting assets situated in) Switzerland or any other jurisdiction in which an effective Lien cannot be granted in favor of the Collateral Agent as trustee or agent for the Secured Parties, notwithstanding any contrary provision in any Loan Document:
(a) Notwithstanding any other provision of this Agreement, each Loan Party Debtor hereby irrevocably and unconditionally undertakes to pay to the Collateral Agent Security Agent, as an independent creditor in its own right and separate creditor an not as representative of the other Secured Parties, sums equal to and in the currency of each amount (the “Parallel Obligations”) equal to: (i) all present and future, actual or contingent amounts owing payable by such Loan Party Debtor to a the Secured Party Parties under or in connection with each of the Loan Debt Documents as and when the same fall that amount falls due for payment under the relevant Debt Document or in connection with the Loan Documents (including, would have fallen due but for the avoidance any discharge resulting from failure of doubt, any change, extension or increase in those obligations pursuant another Secured Party to or in connection with any amendment or supplement or restatement or novation of any Loan Documenttake appropriate steps, in each case whether or not anticipated as of the date of this Agreement) and (ii) any amount which such Loan Party owes insolvency proceedings affecting that Debtor, to a Secured Party as a result of a party rescinding a Loan Document or as a result of invalidity, illegality, or unenforceability of a Loan Document (the “Original Obligations”);preserve its entitlement to be paid that amount.
(b) the Collateral The Security Agent shall have its own independent right to claim performance demand payment of the Parallel Obligations (includingamounts payable by each Debtor under this Clause 17.2, without limitation, any suit, execution, enforcement of security, recovery of guarantees and applications for and voting in respect irrespective of any kind discharge of such Debtor's obligation to pay those amounts to the other Secured Parties resulting from failure by them to take appropriate steps, in insolvency proceedings) and the Parallel Obligations shall not constitute the Collateral Agent and any Secured Party as joint creditors;proceedings affecting that Debtor, to preserve their entitlement to be paid those amounts.
(c) Any amount due and payable by a Debtor to the Parallel Obligations shall not limit or affect the existence of the Original Obligations for which the Secured Parties shall have an independent right to demand payment;
(d) notwithstanding clauses (b) and (c) above:
(i) the Parallel Obligations Security Agent under this Clause 17.2 shall be decreased to the extent that the Collateral Agent receives other Secured Parties have received (and retainsare able to retain) payment in full of the corresponding amount under the other provisions of the Debt Documents and applies any payment against the discharge of its Parallel Obligations amount due and payable by a Debtor to the Collateral Agent and the Original Obligations other Secured Parties under those provisions shall be decreased to the same extent;
extent that the Security Agent has received (iiand is able to retain) payment by a Loan Party of its Original Obligations to the relevant Secured Party shall to the same extent decrease and be a good discharge in full of the Parallel Obligations owing corresponding amount under this Clause 17.2. The rights of the Secured Parties (other than the Security Agent) to receive payment of amounts payable by it to the Collateral Agent; and
(iii) if any Original Obligation is subject to any limitations each Debtor under the Loan DocumentsDebt Documents are several and are separate and independent from, then and without prejudice to, the same limitations shall apply mutatis mutandis to the relevant Parallel Obligation corresponding to that Original Obligation;
(e) the Parallel Obligations are owed to the Collateral Agent in its own name on behalf of itself and not as agent or representative of any other person nor as trustee and all property subject to a Lien on Collateral shall secure the Parallel Obligations so owing to the Collateral Agent in its capacity of creditor rights of the Parallel Obligations;
(f) each Loan Party irrevocably and unconditionally waives any right it may have Security Agent to require a Secured Party to join any proceedings as co-claimant with the Collateral Agent in respect of any claim by the Collateral Agent against a Loan Party receive payment under this Section 9.24;
(g) each Loan Party agrees that:
(i) any defect affecting a claim of the Collateral Agent against any Loan Party under this Section 9.23 will not affect any claim of a Secured Party against such Loan Party under or in connection with the Loan Documents; and
(ii) any defect affecting a claim of a Secured Party against any Loan Party under or in connection with the Loan Documents will not affect any claim of the Collateral Agent under this Section 9.23; and
(h) if the Collateral Agent returns to any Loan Party, whether in any kind of insolvency proceedings or otherwise, any recovery in respect of which it has made a payment to a Secured Party, that Secured Party must repay an amount equal to that recovery to the Collateral AgentClause 17.2.
Appears in 1 contract
Sources: Intercreditor Agreement (NAC Aviation 29 Designated Activity Co)