Senior Liens. (a) If at any time Navistar Financial desires to subordinate the Trustee’s Security Interest in any cash, marketable securities or Equipment and any Proceeds thereof to a Lien (a “Senior Lien”) on such Collateral that is not prohibited by any Secured Instrument, Navistar Financial shall deliver to the Trustee (and concurrently deliver to the Administrative Agent for distribution to each of the Lenders) a certificate of a Responsible Officer: (i) describing the proposed Senior Lien and the cash, marketable securities and/or Equipment subject thereto and certifying that the creation and senior status thereof is not prohibited by any Secured Instrument, (ii) requesting the subordination of the Trustee’s Security Interest in such Collateral to such Senior Lien, (iii) if any marketable securities are to be delivered (or, in the case of marketable securities as to which ownership or the existence of a security interest is evidenced by book entries, transferred) by the Trustee to the holder of such Senior Lien or its agent pursuant to subsection (c) below, requesting such delivery (or transfer) thereof, (iv) attaching a copy of any documents to be prepared by Navistar Financial and executed by the Trustee and delivered by the Trustee to the holder of such Senior Lien or its agent pursuant to subsection (b) of this Section, and (v) specifying the date on which Navistar Financial desires the Trustee to deliver said documents and deliver or transfer, as the case may be, any marketable securities referred to in clause (iii) above to the holder of such Senior Lien or its agent. (b) If the requirements set forth in subsection (a) above have been met with respect to any Senior Lien, the Trustee will, at Navistar Financial’s expense, execute and deliver to the holder of such Senior Lien or its agent as set forth in subsection (a) above such documents as Navistar Financial shall reasonably request (copies of which documents shall have been attached to the certificate delivered pursuant to subsection (a) above in accordance with clause (iv) thereof): (i) evidencing the subordination of the Trustee’s Security Interest in the relevant cash, marketable securities and/or Equipment and any Proceeds thereof to such Senior Lien, (ii) waiving any objection the Trustee may otherwise be entitled to make under this Agreement or under applicable law to the sale or other disposition of the Collateral subject to such Senior Lien or any exercise by the holder of such Senior Lien of remedies permitted by applicable law or contract, provided that the Trustee’s Security Interest shall continue in any Proceeds of such Collateral so sold or disposed of, subject in all respects to the rights of the holder of such Senior Lien; and (iii) waiving any right of the Trustee under this Agreement or under applicable law to sell, or require the holder of such Senior Lien to sell, such Collateral prior to the satisfaction in full of the obligations secured by such Senior Lien. If the holder of any such Senior Lien shall at any time sell or dispose of any marketable securities subject to such Senior Lien for materially less than fair market value, Navistar Financial agrees to use reasonable efforts to recover, as promptly as is practicable, damages from such holder if Navistar Financial determines in its reasonable discretion that such holder failed to act in a commercially reasonable manner in connection with such sale or disposal. (c) If the requirements set forth in subsection (a) above have been met with respect to any Senior Lien and the certificate delivered pursuant to such subsection requests the delivery and/or transfer of any marketable securities, then the Trustee (either directly, through one or more of its agents referred to in Section 4.02 or, in the case of any marketable securities as to which ownership or the existence of a security interest is evidenced by book entries, through the relevant Permitted Financial Intermediary) will make appropriate arrangements for such delivery and/or transfer. (d) Notwithstanding anything contained in this Agreement to the contrary, the Trustee’s Security Interest in any cash, marketable securities or Equipment and any Proceeds thereof shall be junior and subordinate in all respects to any Lien (an “Existing Senior Lien”) on such Collateral existing on the date hereof and not prohibited by any Secured Instrument, and the holder of such Existing Senior Lien may continue to hold (either directly, through a duly authorized agent or, in the case of any marketable securities as to which ownership or the existence of a security interest is evidenced by book entries, through a “securities intermediary” (as defined in the UCC)) any such cash or marketable securities held by it on the date hereof and any Proceeds thereof, provided that, on or before the date hereof, with respect to such cash or marketable securities, the Trustee shall have received, in each case in form and substance reasonably satisfactory to the Trustee: (i) a certificate of a Responsible Officer:
Appears in 2 contracts
Samples: Credit Agreement (Navistar International Corp), Credit Agreement (Navistar Financial Corp)
Senior Liens. (a) If at any time Navistar Financial desires to subordinate the Trustee’s Security Interest in any cash, marketable securities or Equipment and any Proceeds thereof to a Lien (a “Senior Lien”) on such Collateral that is not prohibited by any Secured Instrument, Navistar Financial shall deliver to the Trustee (and concurrently deliver to the Administrative Agent for distribution to each of the Lenders) a certificate of a Responsible Officer:
(i) describing the proposed Senior Lien and the cash, marketable securities and/or Equipment subject thereto and certifying that the creation and senior status thereof is not prohibited by any Secured Instrument,
(ii) requesting the subordination of the Trustee’s Security Interest in such Collateral to such Senior Lien,
(iii) if any marketable securities are to be delivered (or, in the case of marketable securities as to which ownership or the existence of a security interest is evidenced by book entries, transferred) by the Trustee to the holder of such Senior Lien or its agent pursuant to subsection (c) below, requesting such delivery (or transfer) thereof,
(iv) attaching a copy of any documents to be prepared by Navistar Financial and executed by the Trustee and delivered by the Trustee to the holder of such Senior Lien or its agent pursuant to subsection (b) of this Section, and
(v) specifying the date on which Navistar Financial desires the Trustee to deliver said documents and deliver or transfer, as the case may be, any marketable securities referred to in clause (iii) above to the holder of such Senior Lien or its agent.
(b) If the requirements set forth in subsection (a) above have been met with respect to any Senior Lien, the Trustee will, at Navistar Financial’s expense, execute and deliver to the holder of such Senior Lien or its agent as set forth in subsection (a) above such documents as Navistar Financial shall reasonably request (copies of which documents shall have been attached to the certificate delivered pursuant to subsection (a) above in accordance with clause (iv) thereof):
(i) evidencing the subordination of the Trustee’s Security Interest in the relevant cash, marketable securities and/or Equipment and any Proceeds thereof to such Senior Lien,
(ii) waiving any objection the Trustee may otherwise be entitled to make under this Agreement or under applicable law to the sale or other disposition of the Collateral subject to such Senior Lien or any exercise by the holder of such Senior Lien of remedies permitted by applicable law or contract, provided that the Trustee’s Security Interest shall continue in any Proceeds of such Collateral so sold or disposed of, subject in all respects to the rights of the holder of such Senior Lien; and
(iii) waiving any right of the Trustee under this Agreement or under applicable law to sell, or require the holder of such Senior Lien to sell, such Collateral prior to the satisfaction in full of the obligations secured by such Senior Lien. If the holder of any such Senior Lien shall at any time sell or dispose of any marketable securities subject to such Senior Lien for materially less than fair market value, Navistar Financial agrees to use reasonable efforts to recover, as promptly as is practicable, damages from such holder if Navistar Financial determines in its reasonable discretion that such holder failed to act in a commercially reasonable manner in connection with such sale or disposal.
(c) If the requirements set forth in subsection (a) above have been met with respect to any Senior Lien and the certificate delivered pursuant to such subsection requests the delivery and/or transfer of any marketable securities, then the Trustee (either directly, through one or more of its agents referred to in Section 4.02 or, in the case of any marketable securities as to which ownership or the existence of a security interest is evidenced by book entries, through the relevant Permitted Financial Intermediary) will make appropriate arrangements for such delivery and/or transfer.
(d) Notwithstanding anything contained in this Agreement to the contrary, the Trustee’s Security Interest in any cash, marketable securities or Equipment and any Proceeds thereof shall be junior and subordinate in all respects to any Lien (an “Existing Senior Lien”) on such Collateral existing on the date hereof and not prohibited by any Secured Instrument, and the holder of such Existing Senior Lien may continue to hold (either directly, through a duly authorized agent or, in the case of any marketable securities as to which ownership or the existence of a security interest is evidenced by book entries, through a “securities intermediary” (as defined in the UCC)) any such cash or marketable securities held by it on the date hereof and any Proceeds thereof, provided that, on or before the date hereof, with respect to such cash or marketable securities, the Trustee shall have received, in each case in form and substance reasonably satisfactory to the Trustee:
(i) a certificate of a Responsible Officer:
(x) describing such Existing Senior Lien and the cash and/ or marketable securities subject thereto and certifying that the creation and senior status of such Existing Senior Lien is not prohibited by any Secured Instrument,
(y) specifying any cash or marketable securities subject to the Trustee’s Security Interest that are to be held on or after the date hereof by the holder of such Existing Senior Lien, its agent or, in the case of marketable securities as to which ownership or the existence of a security interest is evidenced by book entries, a “securities intermediary” (as defined in the UCC), and
(z) if any Collateral is to be held by or on behalf of the holder of such Existing Senior Lien, certifying that Navistar Financial has provided the holder of such Existing Senior Lien and any other Person who will hold such Collateral (and, in the case of an Existing Senior Lien on marketable securities as to which ownership or the existence of a security interest is evidenced by book entries, the relevant “securities intermediary” (as defined in the UCC)), with (1) written notice of the existence of the Trustee’s Security Interest in such Collateral and (2) irrevocable written instructions to transfer to or as directed by the Trustee any such Collateral and Proceeds thereof remaining after the obligations secured by such Existing Senior Lien have been satisfied, unless such Person shall have previously received notice from the Trustee of the release of the Trustee’s Security Interest therein; and
(ii) to the extent obtainable by Navistar Financial using commercially reasonable efforts, a writing signed by the holder of such Existing Senior Lien:
Appears in 1 contract
Samples: Security, Pledge and Trust Agreement (Navistar Financial Corp)
Senior Liens. (a) If at any time Navistar Financial desires to subordinate the Trustee’s Security Interest in any cash, marketable securities or Equipment and any Proceeds thereof to a Lien (a “Senior Lien”) on such Collateral that is not prohibited by any Secured InstrumentSecurity Document, Navistar Financial Harco shall deliver to the Trustee (and concurrently deliver to the Administrative Collateral Agent for distribution to each of the Lenders) a certificate of a Responsible OfficerOfficer of Harco:
(i) describing the proposed Senior Lien Lien, the Secured Parties holding the Liens that are to be subordinated and the cash, marketable securities and/or Equipment Designated Collateral (or any portion thereof) subject thereto and certifying that the creation and senior status thereof is not prohibited by any Secured Instrument,Security Document;
(ii) attaching a certificate executed by each Secured Party that has an interest in such Designated Collateral (or any portion thereof) which certifies that the creation of the Senior Lien in such Designated Collateral is not prohibited by any Security Document to which such Secured Party is a party;
(iii) requesting the subordination of the Trustee’s Collateral Agent's Security Interest in such Designated Collateral (or any portion thereof) to such Senior Lien,;
(iiiiv) if stating whether any marketable securities are Designated Collateral is to be delivered (or, in the case of marketable securities as to which ownership or the existence of a security interest is evidenced by book entries, transferred) by the Trustee Collateral Agent to the holder of such Senior Lien or its agent pursuant to subsection (c) below, requesting such delivery (or transferTransfer) thereof,;
(ivv) attaching a copy of any documents document to be prepared by Navistar Financial and executed by the Trustee Collateral Agent and delivered by the Trustee Collateral Agent to the holder of such Senior Lien or its agent pursuant to subsection (b) of this Section, and;
(vvi) specifying the date on which Navistar Financial Harco desires the Trustee Collateral Agent to deliver said documents and deliver or transferTransfer, as the case may be, any marketable securities Designated Collateral referred to in clause (iii) above to the holder of such Senior Lien or its agent; and
(vii) representing to the Collateral Agent that Harco and the Trust, to the extent of its interest therein, are the sole and exclusive owners of such Designated Collateral to be subject to the Senior Lien.
(b) If the requirements set forth in subsection (a) above have been met with respect to any Senior Lien, the Trustee Collateral Agent and/or the Servicer, as applicable, will, at Navistar Financial’s Harco's expense, execute and deliver to the holder of such Senior Lien or its agent as set forth in subsection (a) above such documents as Navistar Financial Harco shall reasonably request (copies of which documents shall have been attached to the certificate delivered pursuant to subsection (a) above in accordance with clause (ivv) thereof):
(i) evidencing the subordination of the Trustee’s Collateral Agent's Security Interest in the relevant cash, marketable securities and/or Equipment and any Proceeds thereof Designated Collateral to such Senior Lien,;
(ii) waiving any objection the Trustee Collateral Agent may otherwise be entitled to make under this Agreement or under applicable law to the sale Transfer or other disposition of the Designated Collateral subject to such Senior Lien or any exercise by the holder of such Senior Lien of remedies permitted by applicable law or contract, provided that the Trustee’s Collateral -------- Agent's Security Interest shall continue in any Proceeds proceeds of such Designated Collateral so sold or disposed of, subject in all respects to the rights of the holder of such Senior Lien; and
(iii) waiving any right of the Trustee Collateral Agent under this Agreement or under applicable law to sell, or require the holder of such Senior Lien to sell, such Designated Collateral prior to the satisfaction in full of the obligations secured by such Senior Lien. If the holder of any such Senior Lien shall at any time sell or dispose of any marketable securities subject to such Senior Lien for materially less than fair market value, Navistar Financial agrees to use reasonable efforts to recover, as promptly as is practicable, damages from such holder if Navistar Financial determines in its reasonable discretion that such holder failed to act in a commercially reasonable manner in connection with such sale or disposal.
(c) If the requirements set forth in subsection (a) above have been met with respect to any Senior Lien and the certificate delivered pursuant to such subsection requests the delivery and/or transfer Transfer of any marketable securitiesDesignated Collateral, then the Trustee (either directly, through one or more of its agents referred to in Section 4.02 or, in Collateral Agent and/or the case of any marketable securities as to which ownership or the existence of a security interest is evidenced by book entries, through the relevant Permitted Financial Intermediary) Servicer will make appropriate arrangements for such delivery and/or transferTransfer.
(d) Notwithstanding anything contained in this Agreement to the contrary, the Trustee’s Security Interest in any cash, marketable securities or Equipment and any Proceeds thereof shall be junior and subordinate in all respects to any Lien (an “Existing Senior Lien”) on such Collateral existing on the date hereof and not prohibited by any Secured Instrument, and the holder of such Existing Senior Lien may continue to hold (either directly, through a duly authorized agent or, in the case of any marketable securities as to which ownership or the existence of a security interest is evidenced by book entries, through a “securities intermediary” (as defined in the UCC)) any such cash or marketable securities held by it on the date hereof and any Proceeds thereof, provided that, on or before the date hereof, with respect to such cash or marketable securities, the Trustee shall have received, in each case in form and substance reasonably satisfactory to the Trustee:
(i) a certificate of a Responsible Officer:
Appears in 1 contract
Samples: Collateral Agency Agreement (Navistar Financial Retail Receivables Corporation)
Senior Liens. (a) If at any time Navistar Financial desires to subordinate the Trustee’s Security Interest in any cash, marketable securities Marketable Securities or Equipment and any Proceeds thereof to a Purchase Money Lien (a “Senior Lien”) on such Collateral that is not prohibited by any Secured Instrument, then so long as after giving effect to such proposed Senior Lien the aggregate principal amount of all outstanding Indebtedness will not to exceed $10,000,000, Navistar Financial shall deliver to the Trustee (and concurrently deliver to the Administrative Agent for distribution to each of the Lenders) a certificate of a Responsible Officer:
(i) describing the proposed Senior Lien and the cash, marketable securities Marketable Securities and/or Equipment subject thereto and certifying that (i) the creation and senior status thereof is not prohibited by any Secured InstrumentInstrument and (ii) after giving effect to the creation and senior status thereof, the aggregate principal amount of all outstanding Indebtedness secured by Senior Liens will not exceed $10,000,000,
(ii) requesting the subordination of the Trustee’s Security Interest in such Collateral to such Senior Lien,
(iii) if any marketable securities Marketable Securities are to be delivered (or, in the case of marketable securities Marketable Securities as to which ownership or the existence of a security interest is evidenced by book entries, transferred) by the Trustee to the holder of such Senior Lien or its agent pursuant to subsection (c) below, requesting such delivery (or transfer) thereof,
(iv) attaching a copy of any documents to be prepared by Navistar Financial and executed by the Trustee and delivered by the Trustee to the holder of such Senior Lien or its agent pursuant to subsection (b) of this Section, and
(v) specifying the date on which Navistar Financial desires the Trustee to deliver said documents and deliver or transfer, as the case may be, any marketable securities Marketable Securities referred to in clause (iii) above to the holder of such Senior Lien or its agent.
(b) If the requirements set forth in subsection (a) above have been met with respect to any Senior Lien, the Trustee will, after having been instructed to do so in writing by the Administrative Agent, at Navistar Financial’s expense, execute and deliver to the holder of such Senior Lien or its agent as set forth in subsection (a) above such documents as Navistar Financial shall reasonably request (copies of which documents shall have been attached to the certificate delivered pursuant to subsection (a) above in accordance with clause (iv) thereof):
(i) evidencing the subordination of the Trustee’s Security Interest in the relevant cash, marketable securities Marketable Securities and/or Equipment and any Proceeds thereof to such Senior Lien,
(ii) waiving any objection the Trustee may otherwise be entitled to make under this Agreement or under applicable law to the sale or other disposition of the Collateral subject to such Senior Lien or any exercise by the holder of such Senior Lien of remedies permitted by applicable law or contract, provided that the Trustee’s Security Interest shall continue in any Proceeds of such Collateral so sold or disposed of, subject in all respects to the rights of the holder of such Senior Lien; and
(iii) waiving any right of the Trustee under this Agreement or under applicable law to sell, or require the holder of such Senior Lien to sell, such Collateral prior to the satisfaction in full of the obligations secured by such Senior Lien. If the holder of any such Senior Lien shall at any time sell or dispose of any marketable securities Marketable Securities subject to such Senior Lien for materially less than fair market value, Navistar Financial agrees to use reasonable efforts to recover, as promptly as is practicable, damages from such holder if Navistar Financial determines in its reasonable discretion that such holder failed to act in a commercially reasonable manner in connection with such sale or disposal.
(c) If the requirements set forth in subsection (a) above have been met with respect to any Senior Lien and the certificate delivered pursuant to such subsection requests the delivery and/or transfer of any marketable securitiesMarketable Securities, then the Trustee (either directly, through one or more of its agents referred to in Section 4.02 or, in the case of any marketable securities Marketable Securities as to which ownership or the existence of a security interest is evidenced by book entries, through the relevant Permitted Financial Intermediary) will make appropriate arrangements for such delivery and/or transfer.
(d) Notwithstanding anything contained in this Agreement to the contrary, the Trustee’s Security Interest in any cash, marketable securities or Equipment and any Proceeds thereof shall be junior and subordinate in all respects to any Lien (an “Existing Senior Lien”) on such Collateral existing on the date hereof and not prohibited by any Secured Instrument, and the holder of such Existing Senior Lien may continue to hold (either directly, through a duly authorized agent or, in the case of any marketable securities as to which ownership or the existence of a security interest is evidenced by book entries, through a “securities intermediary” (as defined in the UCC)) any such cash or marketable securities held by it on the date hereof and any Proceeds thereof, provided that, on or before the date hereof, with respect to such cash or marketable securities, the Trustee shall have received, in each case in form and substance reasonably satisfactory to the Trustee:
(i) a certificate of a Responsible Officer:
Appears in 1 contract
Samples: Security, Pledge and Trust Agreement (Navistar International Corp)
Senior Liens. (a) If at any time Navistar Financial desires to subordinate the Trustee’s 's Security Interest in any cash, marketable securities or Equipment and any Proceeds thereof to a Lien (a “"Senior Lien”") on such Collateral that is not prohibited by any Secured Instrument, Navistar Financial shall deliver to the Trustee (and concurrently deliver to the Administrative Agent for distribution to each of the Lenders) a certificate of a Responsible Officer:
(i) describing the proposed Senior Lien and the cash, marketable securities and/or Equipment subject thereto and certifying that the creation and senior status thereof is not prohibited by any Secured Instrument,
(ii) requesting the subordination of the Trustee’s 's Security Interest in such Collateral to such Senior Lien,
(iii) if any marketable securities are to be delivered (or, in the case of marketable securities as to which ownership or the existence of a security interest is evidenced by book entries, transferred) by the Trustee to the holder of such Senior Lien or its agent pursuant to subsection (c) below, requesting such delivery (or transfer) thereof,
(iv) attaching a copy of any documents to be prepared by Navistar Financial and executed by the Trustee and delivered by the Trustee to the holder of such Senior Lien or its agent pursuant to subsection (b) of this Section, and
(v) specifying the date on which Navistar Financial desires the Trustee to deliver said documents and deliver or transfer, as the case may be, any marketable securities referred to in clause (iii) above to the holder of such Senior Lien or its agent.
(b) If the requirements set forth in subsection (a) above have been met with respect to any Senior Lien, the Trustee will, at Navistar Financial’s 's expense, execute and deliver to the holder of such Senior Lien or its agent as set forth in subsection (a) above such documents as Navistar Financial shall reasonably request (copies of which documents shall have been attached to the certificate delivered pursuant to subsection (a) above in accordance with clause (iv) thereof):
(i) evidencing the subordination of the Trustee’s 's Security Interest in the relevant cash, marketable securities and/or Equipment and any Proceeds thereof to such Senior Lien,
(ii) waiving any objection the Trustee may otherwise be entitled to make under this Agreement or under applicable law to the sale or other disposition of the Collateral subject to such Senior Lien or any exercise by the holder of such Senior Lien of remedies permitted by applicable law or contract, provided that the Trustee’s 's Security Interest shall continue in any Proceeds of such Collateral so sold or disposed of, subject in all respects to the rights of the holder of such Senior Lien; and
(iii) waiving any right of the Trustee under this Agreement or under applicable law to sell, or require the holder of such Senior Lien to sell, such Collateral prior to the satisfaction in full of the obligations secured by such Senior Lien. If the holder of any such Senior Lien shall at any time sell or dispose of any marketable securities subject to such Senior Lien for materially less than fair market value, Navistar Financial agrees to use reasonable efforts to recover, as promptly as is practicable, damages from such holder if Navistar Financial determines in its reasonable discretion that such holder failed to act in a commercially reasonable manner in connection with such sale or disposal.
(c) If the requirements set forth in subsection (a) above have been met with respect to any Senior Lien and the certificate delivered pursuant to such subsection requests the delivery and/or transfer of any marketable securities, then the Trustee (either directly, through one or more of its agents referred to in Section 4.02 or, in the case of any marketable securities as to which ownership or the existence of a security interest is evidenced by book entries, through the relevant Permitted Financial Intermediary) will make appropriate arrangements for such delivery and/or transfer.
(d) Notwithstanding anything contained in this Agreement to the contrary, the Trustee’s 's Security Interest in any cash, marketable securities or Equipment and any Proceeds thereof shall be junior and subordinate in all respects to any Lien (an “"Existing Senior Lien”") on such Collateral existing on the date hereof and not prohibited by any Secured Instrument, and the holder of such Existing Senior Lien may continue to hold (either directly, through a duly authorized agent or, in the case of any marketable securities as to which ownership or the existence of a security interest is evidenced by book entries, through a “"securities intermediary” " (as defined in the UCC)) any such cash or marketable securities held by it on the date hereof and any Proceeds thereof, provided that, on or before the date hereof, with respect to such cash or marketable securities, the Trustee shall have received, in each case in form and substance reasonably satisfactory to the Trustee:
(i) a certificate of a Responsible Officer:
Appears in 1 contract
Samples: Security, Pledge and Trust Agreement (Navistar Financial Corp)
Senior Liens. (a) If at any time Navistar Financial desires to subordinate the Trustee’s Security Interest in any cash, marketable securities or Equipment and any Proceeds thereof to a Lien (a “Senior Lien”) on such Collateral that is not prohibited by any Secured Instrument, Navistar Financial shall deliver to the Trustee (and concurrently deliver to Each Lender hereby instructs the Administrative Agent for distribution to each of the Lenders) a certificate of a Responsible Officer:
(i) describing the proposed Senior Lien and the cash, marketable securities and/or Equipment subject Collateral Agent to enter into the Security Agreement and the Intercreditor Agreement and such amendments or modifications thereto and certifying that to the creation other Security Documents consistent herewith and senior status thereof is not prohibited by any Secured Instrument,
(ii) requesting as the subordination of Administrative Agent or the Trustee’s Security Interest in such Collateral to such Senior Lien,
(iii) if any marketable securities are Agent reasonably determines to be delivered necessary to cause the Liens on the Revolver First Priority Collateral (oras defined in the Intercreditor Agreement) securing the Obligations to be senior to the Liens on the Revolver First Priority Collateral securing the Term Loan Obligations and to cause the Liens on the Term and Note First Priority Collateral (as defined in the Intercreditor Agreement) securing the Obligations to be subordinated to the Liens on the Term and Note First Priority Collateral securing the Term Loan Obligations, in the case of marketable securities as to which ownership or the existence of a security interest is evidenced by book entrieseach case, transferred) by the Trustee to the holder of such Senior Lien or its agent pursuant to subsection (c) below, requesting such delivery (or transfer) thereof,
(iv) attaching a copy of any documents to be prepared by Navistar Financial and executed by the Trustee and delivered by the Trustee to the holder of such Senior Lien or its agent pursuant to subsection (b) of this Section, and
(v) specifying the date on which Navistar Financial desires the Trustee to deliver said documents and deliver or transfer, as the case may be, any marketable securities referred to in clause (iii) above to the holder of such Senior Lien or its agent.
(b) If the requirements extent set forth in subsection (athe Intercreditor Agreement. Each Lender agrees that, notwithstanding the time, order or method of attachment or perfection of Liens granted in favor of the Collateral Agent and/or the Term Collateral Agent, to secure the Obligations and/or the Term Loan Obligations or the filing or recording of financing statements or other Security Documents and/or the Term Security Documents; the validity or enforceability of the security interests and Liens granted in favor of the Collateral Agent or the Term Collateral Agent; any provisions of the UCC or any applicable law or decision; any provision set forth in any Security Document and/or any Term Security Document in the possession or control by the Collateral Agent or the Term Collateral Agent of all or any part of any Collateral as of the date hereof or otherwise, the Liens granted under the Term Security Documents and the Liens granted under the Security Documents shall have the priority set forth above as more fully set forth in the Intercreditor Agreement. Each Lender agrees that it shall not challenge or question in any proceeding the validity or enforceability of this Section 13.18(d) above have been met or any corresponding provisions with respect to lien subordination in the Security Agreement or the Intercreditor Agreement. Each Lender agrees that it shall not challenge or question in any Senior Lien, proceeding the Trustee will, at Navistar Financial’s expense, execute and deliver to the holder of such Senior Lien priority or its agent as set forth in subsection (a) above such documents as Navistar Financial shall reasonably request (copies of which documents shall have been attached to the certificate delivered pursuant to subsection (a) above in accordance with clause (iv) thereof):
(i) evidencing the subordination validity of the Trustee’s Security Interest in the relevant cashliens granted to Administrative Agent, marketable securities and/or Equipment and any Proceeds thereof to such Senior Lien,
(ii) waiving any objection the Trustee may otherwise be entitled to make under this Agreement or under applicable law to the sale or other disposition of the Collateral subject to such Senior Lien or any exercise by the holder of such Senior Lien of remedies permitted by applicable law or contract, provided that the Trustee’s Security Interest shall continue in any Proceeds of such Collateral so sold or disposed of, subject in all respects to the rights of the holder of such Senior Lien; and
(iii) waiving any right of the Trustee under this Agreement or under applicable law to sell, or require the holder of such Senior Lien to sell, such Collateral prior to the satisfaction in full of the obligations secured by such Senior Lien. If the holder of any such Senior Lien shall at any time sell or dispose of any marketable securities subject to such Senior Lien for materially less than fair market value, Navistar Financial agrees to use reasonable efforts to recover, as promptly as is practicable, damages from such holder if Navistar Financial determines in its reasonable discretion that such holder failed to act in a commercially reasonable manner in connection with such sale or disposal.
(c) If the requirements set forth in subsection (a) above have been met with respect to any Senior Lien and the certificate delivered pursuant to such subsection requests the delivery and/or transfer of any marketable securities, then the Trustee (either directly, through one or more of its agents referred to in Section 4.02 or, in the case of any marketable securities as to which ownership or the existence of a security interest is evidenced by book entries, through the relevant Permitted Financial Intermediary) will make appropriate arrangements for such delivery and/or transfer.
(d) Notwithstanding anything contained in this Agreement to the contrary, the Trustee’s Security Interest in any cash, marketable securities or Equipment and any Proceeds thereof shall be junior and subordinate in all respects to any Lien (an “Existing Senior Lien”) on such Collateral existing on the date hereof and not prohibited by any Secured Instrument, and the holder of such Existing Senior Lien may continue to hold (either directly, through a duly authorized agent or, in the case of any marketable securities as to which ownership or the existence of a security interest is evidenced by book entries, through a “securities intermediaryLenders” (as defined in the UCCTerm Credit Agreement)) any such cash , Term Administrative Agent, Collateral Agent or marketable securities held by it on the date hereof and any Proceeds thereof, provided that, on or before Term Collateral Agent to secure the date hereof, with respect to such cash or marketable securities, Term Loan Obligations (as defined in the Trustee shall have received, in each case in form and substance reasonably satisfactory to the Trustee:
(i) a certificate of a Responsible Officer:Term Credit Agreement).
Appears in 1 contract
