Additional Parity Lien Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred after the date hereof provided that: (1) such Parity Lien Obligations are identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b); and (2) unless such debt is issued under an existing Parity Lien Document for any Series of Parity Lien Debt whose Parity Lien Representative is already party to this Agreement, the designated Parity Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein and promptly delivers the same to the Collateral Trustee. (b) The Company will be permitted to designate as an additional holder of Parity Lien Debt hereunder each Person who is, or who becomes, the registered holder of Parity Lien Debt incurred by the Company, any Grantor or any Guarantor after the date of this Agreement in accordance with the terms of all applicable Parity Lien Documents. The Company may only effect such designation by delivering to the Collateral Trustee an Additional Secured Debt Designation that: (1) states that the Company or applicable Grantor intends to incur additional Parity Lien Debt (“Additional Parity Lien Debt”) that is permitted by each applicable Parity Lien Document to be incurred and to be secured with a Parity Lien equally and ratably with all previously existing and future Parity Lien Debt;
Appears in 3 contracts
Samples: Indenture (CONSOL Mining Corp), Collateral Trust Agreement (Vanguard Natural Resources, Inc.), Collateral Trust Agreement (Vanguard Natural Resources, LLC)
Additional Parity Lien Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred after the date hereof hereof; provided that:
(1i) such Parity Lien Obligations are identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b); and
(2ii) unless such debt is issued under an existing Parity Lien Document for any Series of Parity Lien Debt whose Parity Lien Representative is already party to this Agreement, the designated Parity Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein an Additional Secured Debt Designation and promptly delivers the same to the Collateral Trustee.
(b) The Company Parent will be permitted to designate as an additional holder of Parity Lien Debt hereunder each Person who is, or who becomes, the registered holder of Parity Lien Debt incurred by the Company, any Grantor or any Guarantor Obligor after the date of this Agreement in accordance with the terms of all applicable Parity Lien Documents. The Company Parent may only effect such designation by delivering to the Collateral Trustee an Additional Secured Parity Lien Debt Designation Certificate that:
(1i) states that the Company or applicable Grantor Obligor intends to incur additional Parity Lien Debt (“Additional Parity Lien Debt”) that is permitted by each applicable Parity Lien Document to be incurred and to be secured with a Parity Lien equally and ratably with all previously existing and future other Parity Lien Debt;
(ii) specifies the name, address and contact information of the Parity Lien Representative for such series of Additional Parity Lien Debt for purposes of Section 7.6;
(iii) attaches as Exhibit 1 to such Additional Parity Lien Debt Certificate a Reaffirmation Agreement in substantially the form attached as Exhibit 1 to Exhibit A of this Agreement, which Reaffirmation Agreement has been duly executed by each Obligor; and
(iv) states that the Parent has caused a copy of the Additional Parity Lien Debt Certificate and the related Collateral Trust Joinder to be delivered to each then existing Parity Lien Representative; provided that, no Indebtedness incurred under the Working Capital Facility Credit Agreement or otherwise secured by the Working Capital Priority Collateral may be designated as Parity Lien Debt pursuant to this Section 3.8(b). Although the Parent shall be required to deliver a copy of each Additional Parity Lien Debt Certificate, each Collateral Trust Joinder and each Additional Secured Debt Designation to each then existing Parity Lien Representative, the failure to so deliver a copy of the Additional Parity Lien Debt Certificate, Collateral Trust Joinder and/or Additional Secured Debt Designation to any then-existing Parity Lien Representative shall not affect the status of such debt as Additional Parity Lien Debt if the other requirements of this Section 3.8 are complied with. The Collateral Trustee shall have the right to request that the Parent provide to it a legal opinion or opinions of counsel (subject to customary assumptions, qualifications and exceptions and substantially similar to any such opinions delivered to it on the date of this Agreement as it relates to the subject matter thereof) as to the Additional Parity Lien Debt being secured by a valid and perfected security interest in the Collateral; provided that (i) such legal opinion or opinions need not address any collateral of a type not previously covered by any legal opinion delivered by or on behalf of the Parent and (ii) nothing shall preclude such legal opinion or opinions from being delivered on a post-closing basis after the incurrence of such Additional Parity Lien Debt if permitted by the Parity Lien Representative for such Additional Parity Lien Debt. Notwithstanding the foregoing, nothing in this Agreement will be construed to allow any Obligor to incur additional Indebtedness (including Additional Notes) unless otherwise permitted by the terms of all applicable Parity Lien Documents.
(c) With respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred after the date hereof, each Obligor agrees to take such actions (if any) as may from time to time reasonably be requested by the Collateral Trustee, provided that the Collateral Trustee shall have no obligation to do so and shall have no liability in connection with or in failing to do so, or any Act of Parity Lien Debtholders, and enter into such technical amendments, modifications and/or supplements to the then existing Guarantees and Parity Lien Security Documents (or execute and deliver such additional Parity Lien Security Documents) as may from time to time be reasonably requested by such Persons, provided that the Collateral Trustee shall have no obligation to do so and shall have no liability in connection with or failing to do so, to ensure that the Additional Notes or the Additional Parity Lien Debt, as applicable, are secured by, and entitled to the benefits of, the Parity Lien Security Documents, and each Parity Lien Secured Party (by its acceptance of the benefits hereof) hereby agrees to, and authorizes the Collateral Trustee to enter into, any such technical amendments, modifications and/or supplements (and additional Parity Lien Security Documents). Each Obligor hereby further agrees that, if there are any recording, filing or other similar fees payable in connection with any of the actions to be taken pursuant to this Section 3.8(c) or Section 3.8(d), all such amounts shall be paid by, and shall be for the account of, the Parent and the other respective Obligors, on a joint and several basis.
(d) Without limitation of the foregoing, each Obligor agrees to take the following actions with respect to the Mortgaged Properties with respect to all Additional Parity Lien Debt (it being understood that any such actions may be taken following the incurrence of any such Additional Parity Lien Debt on a post-closing basis if permitted by the Parity Lien Representative for such Additional Parity Lien Debt) to the extent necessary to ensure that such Additional Parity Lien Debt is secured by, and entitled to the benefits of, the Parity Lien Security Documents with respect to such Mortgaged Properties:
(i) each applicable Obligor shall enter into, and deliver to the Collateral Trustee a mortgage modification or new mortgage, debenture, hypothec, deed of trust, deed to secure Indebtedness or similar document, instrument or agreement with regard to each Real Property subject to a mortgage, debenture, hypothec, deed of trust, deed to secure Indebtedness or similar document, instrument or agreement (each such mortgage, debenture, hypothec, deed of trust, deed to secure Indebtedness or similar document, instrument or agreement an “Additional Mortgage Instrument”), in proper form for recording in all applicable jurisdictions, in a form and substance reasonably satisfactory to the Collateral Trustee; and
(ii) each applicable Obligor will cause to be delivered to the Collateral Trustee a local counsel opinion (subject to customary assumptions, qualifications and exceptions and substantially similar to any such opinions delivered to it on the date of this Agreement as it relates to the subject matter thereof) to the effect that the Collateral Trustee has a valid and perfected Lien with respect to such Mortgaged Property.
Appears in 2 contracts
Samples: Collateral Trust Agreement (Calumet Specialty Products Partners, L.P.), Collateral Trust Agreement (Calumet Specialty Products Partners, L.P.)
Additional Parity Lien Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred after the date hereof hereof; provided that:
(1) such Parity Lien Obligations are identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b); and
(2) unless such debt is issued under an existing Parity Lien Document for any Series except in the case of Parity Lien Debt whose Parity Lien Representative is already party to this AgreementAdditional Notes, the designated Parity Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein and promptly delivers the same to the Collateral Trustee.
(b) The Company will be permitted to designate as an additional holder of Parity Lien Debt hereunder each Person who is, or who becomes, the registered holder of Parity Lien Debt incurred by the Company, any Grantor Company or any Guarantor after the date of this Agreement in accordance with the terms of all applicable Parity Lien Documents, Priority Lien Documents and Junior Lien Documents. The Company may only effect such designation by delivering to the Collateral Trustee an Additional Secured Parity Lien Debt Designation Certificate that:
(1) states that the Company or applicable Grantor Mortgagor intends to incur additional Parity Lien Debt (“Additional Parity Lien Debt”) that is permitted by each applicable Parity Lien Document to be incurred and to be secured with a Parity Lien equally and ratably with all previously existing and future Parity Lien Debt;
Appears in 1 contract
Samples: Collateral Trust Agreement (Chesapeake Energy Corp)
Additional Parity Lien Debt. (a) The Collateral Trustee willwill act as trustee hereunder for, as collateral trustee hereunder, and perform its duties and undertakings set forth in Section 3.1(a) with respect to any this Agreement on behalf of, each holder of Parity Lien Obligations constituting Additional Notes or a in respect of each Series of Parity Lien Debt outstanding as of the date hereof and each Series of Parity Lien Debt that is issued or incurred after the date hereof provided (including any refinancing or replacement of a Series of Parity Lien Debt) that:
(1i) such holds Parity Lien Obligations that are identified as Parity Lien Debt such in accordance with the procedures set forth in Section 3.8(b); and
(2ii) unless such debt is issued under an existing Parity Lien Document for any Series of Parity Lien Debt whose Parity Lien Representative is already party to this Agreementsigns, the through its designated Parity Lien Representative identified pursuant to Section 3.8(b) signs ), a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein and promptly delivers the same to the Collateral TrusteeTrustee prior to or concurrently with the incurrence of such Series of Parity Lien Debt.
(b) The Company will be permitted to incur Indebtedness in respect of a new Series of Parity Lien Debt and to designate as an additional holder of Parity Lien Obligations hereunder the lenders and agents in respect of such Series of Parity Lien Debt hereunder and each Person who is, or who becomes, the registered holder of Parity Lien Debt incurred by the Company, any Grantor Company or any Guarantor other Grantor after the date of this Agreement Agreement, in each case, only to the extent such Indebtedness is designated by the Company in accordance with the following sentence and only to the extent such incurrence is permitted under the terms of all applicable the Parity Lien Documents. The Company may only effect such designation by delivering to the Collateral Trustee an Additional Secured Debt Designation that(with copies to the Priority Lien Collateral Agent (if any), the Notes Trustee and each other previously identified Parity Lien Representative), each of the following:
(1i) states that on or prior to the Company or applicable Grantor intends to incur date on which such additional Parity Lien Debt (the “Additional Parity Lien Debt”) is incurred, an Officers’ Certificate stating that the Company intends to incur such Additional Parity Lien Debt, and certifying that (A) such incurrence is permitted by each applicable and does not violate or result in any default under the Note Documents or any other then existing Parity Lien Document to be incurred and to be secured with a Documents (other than any incurrence of Parity Lien equally and ratably Obligations that would simultaneously repay all Parity Lien Obligations under the Parity Lien Documents under which such default would arise), (B) the definitive documentation associated with such Additional Parity Lien Debt contains a written agreement of the holders of such Indebtedness, for the enforceable benefit of all previously other holders of existing and future Parity Lien Obligations and each existing and future Parity Lien Representative substantially as follows: (x) that all Parity Lien Obligations will be and are secured equally and ratably by all Liens granted to the Collateral Trustee, for the benefit of the Secured Parties, at any time granted by any Grantor to secure any Parity Lien Obligations whether or not upon property otherwise constituting collateral to such Parity Lien Obligations and that all Liens granted pursuant to the Parity Lien Security Documents will be enforceable by the Collateral Trustee for the benefit of all Secured Parties equally and ratably as contemplated by this Agreement, (y) that the holders of Obligations in respect of such Additional Parity Lien Debt are bound by the provisions of, and agree to the terms of, the Intercreditor Agreement and this Agreement, including the provisions relating to the ranking of Liens and the order of application of proceeds from the enforcement of Liens and (z) consenting to and directing the Collateral Trustee to perform its obligations under this Agreement, the Intercreditor Agreement and the Parity Lien Security Documents; provided that such Additional Parity Lien Debt shall not be permitted to also constitute Priority Lien Debt, and (C) the Company and each other Grantor has duly authorized, executed (if applicable) and recorded (or caused to be recorded), or intends to authorize, execute and record (if applicable), in each appropriate governmental office all relevant filings and recordations, if any, necessary to ensure that the Obligations in respect of such Additional Parity Lien Debt are secured by the Collateral to the extent set forth in the Parity Lien Security Documents and in accordance with this Agreement, the Intercreditor Agreement and the Parity Lien Security Documents;
(ii) a written notice specifying the name and address of the Parity Lien Representative for such series of Additional Parity Lien Debt for purposes of Section 7.6; and
(iii) a copy of the executed Collateral Trust Joinder referred to in clause (a) above, executed by the applicable Parity Lien Representative (on behalf of each holder of Obligations in respect of such Additional Parity Lien Debt represented by it).
(c) Although the Company shall be required to deliver a copy of each of the foregoing documents described in clauses (i) through (iii) of Section 3.8(b) to the Priority Lien Collateral Agent (if any), the Notes Trustee and to each other then existing Parity Lien Debt Representative, the failure to so deliver a copy of any such document to the Priority Lien Collateral Agent (if any), the Notes Trustee and such other Parity Lien Debt Representative shall not affect the status of such Additional Parity Lien Debt as Parity Lien Obligations entitled to the benefits of this Agreement, the Intercreditor Agreement and the Parity Lien Security Documents if the other requirements of this Section 3.8 are complied with. The Company shall provide to the Collateral Trustee and the other then existing Parity Lien Representative shall have the right to request from the Company a copy of any legal opinion of counsel (which may be provided by internal counsel to the Company) provided to the holders of Additional Parity Lien Debt or their respective Parity Lien Representatives as to the Additional Parity Lien Debt being secured by a valid and perfected security interest; provided, however, that such legal opinion or opinions need not address any collateral of a type or located in a jurisdiction not previously covered by any legal opinion delivered by or on behalf of the Company. Notwithstanding the foregoing, nothing in this Agreement will be construed to allow the Company or any other Grantor to incur additional Indebtedness unless otherwise permitted by the terms of all applicable Parity Lien Documents. No Liens shall be granted in favor of the Collateral Trustee, for the benefit of any Secured Party under any Parity Lien Security Document unless such Lien shall be granted for all Secured Parties under such Parity Lien Security Document.
Appears in 1 contract
Additional Parity Lien Debt. (a) The Parity Lien Collateral Trustee willAgent will accept, as collateral trustee hereunderenter into, hold, maintain, administer and enforce all Parity Lien Collateral Documents, including all Collateral subject thereto, and all Liens created thereunder, perform its undertakings set forth obligations under the Parity Lien Obligations and protect, exercise and enforce the interests, rights, powers and remedies granted or available to it under, pursuant to or in Section 3.1(a) connection with the Parity Lien Collateral Documents, with respect to any Parity Lien each holder of Obligations constituting Additional Notes or of a Series of Parity Lien Debt that is issued or incurred after the date hereof provided that:
(1) such Parity Lien holds Obligations that are identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b5.7(b); and;
(2) unless such debt is issued under an existing Parity Lien Document for any Series of Parity Lien Debt whose Parity Lien Representative is already party to this Agreementsigns, the through its designated Parity Lien Representative identified pursuant to Section 3.8(b5.7 (b), an Intercreditor Joinder; and
(3) signs delivers a Collateral Trust Joinder Lien Sharing and a joinder to the Intercreditor Agreement in the form provided therein and promptly delivers the same to the Collateral TrusteePriority Confirmation.
(b) The Company or other applicable Guarantor Subsidiary will be permitted to designate as an additional holder of Parity Lien Debt Obligations hereunder each Person who is, or who becomes, the registered holder of Parity Lien Debt or the registered holder of Priority Lien Debt incurred by the Company, any Grantor Company or any such other Guarantor Subsidiary after the date of this Agreement in accordance with the terms of all applicable Parity Lien Secured Debt Documents. The Company or other Guarantor Subsidiary may only effect such designation by delivering to the Parity Lien Collateral Trustee an Additional Secured Debt Designation thatAgent, with copies to each previously identified Parity Lien Representative, each of the following:
(1) states that an Officers' Certificate stating that:
(A) the Company or other applicable Grantor Guarantor Subsidiary intends to incur additional Parity Lien Debt (“Additional which will be Parity Lien Debt”) that is Debt permitted by each applicable Parity Lien Secured Debt Document to be incurred and to be secured with a Parity Lien equally Equally and ratably Ratably with all previously existing and future Parity Lien Debt;
(2) evidence that the Company or such other Guarantor Subsidiary has duly authorized, executed (if applicable) and recorded (or caused to be recorded) in each appropriate governmental office all relevant filings and recordations to ensure that the additional Parity Lien Debt is secured by the Collateral in accordance with the Parity Lien Collateral Documents; and
(3) a written notice specifying the name and address of the Parity Lien Representative for such series of additional Parity Lien Debt for purposes of Section 8.8. Notwithstanding the foregoing, nothing in this Agreement will be construed to allow the Company or any other Guarantor Subsidiary to incur additional Indebtedness unless otherwise permitted by the terms of all applicable Secured Debt Documents.
Appears in 1 contract
Additional Parity Lien Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred on or after the date hereof hereof, provided that:
(1i) such Parity Lien Obligations are identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b); and
(2ii) unless such debt is issued under an existing Parity Lien Document for any Series of Parity Lien Debt whose Parity Lien Representative is already party to this Agreement, the designated Parity Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein and promptly delivers the same to the Collateral Trustee.
(b) The Company will be permitted to designate as an additional holder of Parity Lien Debt hereunder each Person who is, or who becomes, the registered holder of Parity Lien Debt incurred by the Company, any Grantor or any Guarantor on or after the date of this Agreement in accordance with the terms of all applicable Parity Lien Documents. The Company may only effect such designation by delivering to the Collateral Trustee an Additional Secured Parity Lien Debt Designation Certificate that:
(1i) states that the Company or applicable Grantor intends to incur additional Parity Lien Debt (“Additional Parity Lien Debt”) that is permitted by each applicable Parity Lien Document to be incurred and to be secured with a Parity Lien equally and ratably (but subject to Section 3.4 of this Agreement) with all previously existing and future Parity Lien Debt;
Appears in 1 contract
Additional Parity Lien Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred after the date hereof provided that:
(1) such Parity Lien Obligations are identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b); and
(2) unless such debt is issued under an existing Parity Lien Document for any Series of Parity Lien Debt whose Parity Lien Representative is already party to this Agreement, the designated Parity Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein and promptly delivers the same to the Collateral Trustee.
(b) The Company will be permitted to designate as an additional holder of Parity Lien Debt hereunder each Person who is, or who becomes, the registered holder of Parity Lien Debt incurred by the Company, any Grantor or any Guarantor after the date of this Agreement in accordance with the terms of all applicable Parity Lien Documents. The Company may only effect such designation by delivering to the Collateral Trustee an Additional Secured Debt Designation that:
(1) states that the Company or applicable Grantor intends to incur additional Parity Lien Debt (“Additional Parity Lien Debt”) that is permitted by each applicable Parity Lien Document to be incurred and to be secured with a Parity Lien equally and ratably with all previously existing and future Parity Lien Debt;
(2) specifies the name, address and contact information of the Parity Lien Representative for such series of Additional Parity Lien Debt for purposes of Section 7.6;
(3) attaches as Exhibit 1 to such Additional Secured Debt Designation a Reaffirmation Agreement in substantially the form attached as Exhibit 1 to Exhibit A of this Agreement, which Reaffirmation Agreement has been duly executed by the Company and each Grantor and Guarantor; and
(4) states that the Company has caused a copy of the Additional Secured Debt Designation and the related Collateral Trust Joinder to be delivered to each then existing Parity Lien Representative. Although the Company shall be required to deliver a copy of each Additional Secured Debt Designation and each Collateral Trust Joinder to each then existing Parity Lien Representative, the failure to so deliver a copy of the Additional Secured Debt Designation and/or Collateral Trust Joinder to any then existing Parity Lien Representative shall not affect the status of such debt as Additional Parity Lien Debt if the other requirements of this Section 3.8 are complied with. Each of the Collateral Trustee and the other then existing Parity Lien Representatives shall have the right to request an Officers’ Certificate and a legal opinion or opinions of counsel (subject to customary assumptions and qualifications) from the Company as to the Additional Parity Lien Debt being permitted by the terms of the Parity Lien Documents and secured by a valid and perfected security interest in the Collateral; provided that (i) such legal opinion or opinions need not address any collateral of a type not previously covered by any legal opinion delivered by or on behalf of the Company and (ii) nothing shall preclude such legal opinion or opinions from being delivered on a post-closing basis after the incurrence of such Additional Parity Lien Debt if permitted by the Parity Lien Representative for such Additional Parity Lien Debt. Notwithstanding the foregoing, nothing in this Agreement will be construed to allow the Company, any Grantor or any Guarantor to incur additional Indebtedness (including Additional Notes) unless otherwise permitted by the terms of all applicable Parity Lien Documents. Liens upon the Collateral to secure Additional Parity Lien Debt shall be created pursuant to the Security Documents that create Liens upon the Collateral to secure the other Parity Lien Obligations; provided that, to the extent required by applicable law, such Liens upon the Collateral to secure Additional Parity Lien Debt may be created pursuant to separate Security Documents, which shall be in substantially the same form as the applicable Security Documents creating the Liens upon the Collateral to secure the other Parity Lien Obligations. Additional Parity Lien Debt shall not be secured by Liens upon any Collateral unless the other Parity Lien Obligations are also secured by Liens on such Collateral. Additional Parity Lien Debt shall be guaranteed by all of the applicable Guarantors and shall not be guaranteed by any Person that is not a Guarantor.
(c) With respect to any Parity Lien Obligations constituting Additional Notes or other Additional Parity Lien Debt that is issued or incurred after the date hereof, the Company and each of the Grantors and Guarantors agrees to take such actions (if any) as necessary and as may from time to time reasonably be requested by the Collateral Trustee, any Parity Lien Representative or any Act of Parity Lien Debtholders, and enter into such technical amendments, modifications and/or supplements to the then existing Guarantees and Security Documents (or execute and deliver such additional Security Documents) as necessary and as may from time to time be reasonably requested by such Persons (including as contemplated by clause (d) below), to ensure that the Additional Notes or the Additional Parity Lien Debt, as applicable, is secured by, and entitled to the benefits of, the Security Documents, and each Parity Lien Secured Party (by its acceptance of the benefits hereof) hereby agrees to, and authorizes the Collateral Trustee to enter into, any such technical amendments, modifications and/or supplements (and additional Security Documents). The Company and each Grantor and Guarantor hereby further agrees that, if there are any recording, filing or other similar fees payable in connection with any of the actions to be taken pursuant to this Section 3.8(c) or Section 3.8(d), all such amounts shall be paid by, and shall be for the account of, the Company and the respective Grantors and Guarantors, on a joint and several basis.
(d) Without limitation of the foregoing, upon reasonable request of the Collateral Trustee, any Parity Lien Representative or any Act of Parity Lien Debtholders, each Grantor agrees to take the following actions with respect to any real property Collateral (including Oil and Gas Properties) with respect to all Additional Parity Lien Debt (it being understood that any such actions may be taken following the incurrence of any such Additional Parity Lien Debt on a post-closing basis if permitted by the Parity Lien Representative for such Additional Parity Lien Debt):
(1) each applicable Grantor shall enter into, and deliver to the Collateral Trustee a mortgage modification or new mortgage or deed of trust with regard to each real property subject to a mortgage or deed of trust (each such mortgage or deed of trust a “Mortgage” and each such property a “Mortgaged Property”), in proper form for recording in all applicable jurisdictions;
(2) each applicable Grantor will cause to be delivered to the Collateral Trustee a local counsel opinion (subject to customary assumptions and qualifications) to the effect that the Collateral Trustee has a valid and perfected Lien with respect to each such Mortgaged Property; and
(3) each applicable Grantor will cause a title company to have delivered to the Collateral Trustee an endorsement to each title insurance policy for any real property Collateral (excluding Oil and Gas Properties), if any, then in effect for the benefit of the Parity Lien Secured Parties, date down(s) or other evidence (which may include a new title insurance policy) (each such delivery, a “Title Datedown Product”), in each case insuring that (i) the priority of the Liens of the applicable Mortgage(s) as security for the Parity Lien Obligations has not changed and, if a new Mortgage is entered into, that the Lien of such new Mortgage securing the Parity Lien Debt then being incurred shall have the same priority as any existing Mortgage securing then existing Parity Lien Obligations, (ii) since the later of the original date of such title insurance product and the date of the Title Datedown Product delivered most recently prior to (and not in connection with) such additional Indebtedness, there has been no change in the condition of title and (iii) there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the applicable Mortgage(s), in each case other than with respect to Liens permitted by each Parity Lien Document. The Company will deliver an Officers’ Certificate to the Collateral Trustee confirming that the foregoing conditions have been satisfied.
Appears in 1 contract
Samples: Collateral Trust Agreement
Additional Parity Lien Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred after the date hereof hereof; provided that:
(1) such Parity Lien Obligations are identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b); and
(2) unless such debt is issued under an existing Parity Lien Document for any Series of Parity Lien Debt whose Parity Lien Representative is already party to this Agreement, the designated Parity Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein an Additional Secured Debt Designation and promptly delivers the same to the Collateral Trustee.
(b) The Company will be permitted to designate as an additional holder of Parity Lien Debt hereunder each Person who is, or who becomes, the registered holder of Parity Lien Debt incurred by the Company, any Grantor Company or any Guarantor after the date of this Agreement in accordance with the terms of all applicable Parity Lien Documents. The Company may only effect such designation by delivering to the Collateral Trustee an (i) Officers’ Certificate stating that the incurrence of such Additional Secured Parity Lien Debt Designation (as defined below) is authorized and permitted by the Parity Lien Documents and (ii) Additional Parity Lien Debt Certificate that:
(1) states that the Company or applicable Grantor intends to incur additional Parity Lien Debt (“Additional Parity Lien Debt”) that is permitted by each applicable Parity Lien Document to be incurred and to be secured with a Parity Lien equally and ratably with all previously existing and future Parity Lien Debt;
Appears in 1 contract
Additional Parity Lien Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred after the date hereof hereof; provided that:
(1) such Parity Lien Obligations are identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b); and
(2) unless such debt is issued under an existing Parity Lien Document for any Series except in the case of Parity Lien Debt whose Parity Lien Representative is already party to this AgreementAdditional Notes, the designated Parity Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein and promptly delivers the same to the Collateral Trustee.
(b) The Company will be permitted to designate as an additional holder of Parity Lien Debt hereunder each Person who is, or who becomes, the registered holder of Parity Lien Debt incurred by the Company, any Grantor Company or any Guarantor after the date of this Agreement in accordance with the terms of all applicable Parity Lien Documents, Priority Lien Documents and Junior Lien Documents. The Company may only effect such designation by delivering to the Collateral Trustee an Additional Secured Parity Lien Debt Designation Certificate that:
(1) states that the Company or other applicable Grantor intends to incur additional Parity Lien Debt (“Additional Parity Lien Debt”) that is permitted by the Credit Agreement and each applicable Parity Lien Document to be incurred and to be secured with a Parity Lien equally and ratably with all previously existing and future Parity Lien Debt;
Appears in 1 contract
Additional Parity Lien Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred after the date hereof hereof; provided that:
(1i) such Parity Lien Obligations are identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b); and
(2ii) unless such debt is issued under an existing Parity Lien Document for any Series of Parity Lien Debt whose Parity Lien Representative is already party to this Agreement, the designated Parity Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein an Additional Secured Debt Designation and promptly delivers the same to the Collateral Trustee.
(b) The Company Parent will be permitted to designate as an additional holder of Parity Lien Debt hereunder each Person who is, or who becomes, the registered holder of Parity Lien Debt incurred by the Company, any Grantor or any Guarantor Obligor after the date of this Agreement in accordance with the terms of all applicable Parity Lien Documents. The Company Parent may only effect such designation by delivering to the Collateral Trustee an Additional Secured Parity Lien Debt Designation Certificate that:
(1i) states that the Company or applicable Grantor Obligor intends to incur additional Parity Lien Debt (“Additional Parity Lien Debt”) that is permitted by each applicable Parity Lien Document to be incurred and to be secured with a Parity Lien equally and ratably with all previously existing and future other Parity Lien Debt;
(ii) specifies the name, address and contact information of the Parity Lien Representative for such series of Additional Parity Lien Debt for purposes of Section 7.6;
(iii) attaches as Exhibit 1 to such Additional Parity Lien Debt Certificate a Reaffirmation Agreement in substantially the form attached as Exhibit 1 to Exhibit A of this Agreement, which Reaffirmation Agreement has been duly executed by each Obligor; and
(iv) states that the Parent has caused a copy of the Additional Parity Lien Debt Certificate and the related Collateral Trust Joinder to be delivered to each then existing Parity Lien Representative; provided that, no Indebtedness incurred under the Working Capital Facility Credit Agreement or otherwise secured by the Working Capital Priority Collateral may be designated as Parity Lien Debt pursuant to this Section 3.8(b). Although the Parent shall be required to deliver a copy of each Additional Parity Lien Debt Certificate, each Collateral Trust Joinder and each Additional Secured Debt Designation to each then existing Parity Lien Representative, the failure to so deliver a copy of the Additional Parity Lien Debt Certificate, Collateral Trust Joinder and/or Additional Secured Debt Designation to any then-existing Parity Lien Representative shall not affect the status of such debt as Additional Parity Lien Debt if the other requirements of this Section 3.8 are complied with. The Collateral Trustee shall have the right to request that the Parent provide to it a legal opinion or opinions of counsel (subject to customary assumptions, qualifications and exceptions and substantially similar to any such opinions delivered to it on the date of this Agreement as it relates to the subject matter thereof) as to the Additional Parity Lien Debt being secured by a valid and perfected security interest in the Collateral; provided that (i) such legal opinion or opinions need not address any collateral of a type not previously covered by any legal opinion delivered by or on behalf of the Parent and (ii) nothing shall preclude such legal opinion or opinions from being delivered on a post-closing basis after the incurrence of such Additional Parity Lien Debt if permitted by the Parity Lien Representative for such Additional Parity Lien Debt. Notwithstanding the foregoing, nothing in this Agreement will be construed to allow any Obligor to incur additional Indebtedness (including Additional Notes) unless otherwise permitted by the terms of all applicable Parity Lien Documents.
(c) With respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred after the date hereof, each Obligor agrees to take such actions (if any) as may from time to time reasonably be requested by the Collateral Trustee, provided that the Collateral Trustee shall have no obligation to do so and shall have no liability in connection with or in failing to do so, or any Act of Parity Lien Debtholders, and enter into such technical amendments, modifications and/or supplements to the then existing Guarantees and Parity Lien Security Documents (or execute and deliver such additional Parity Lien Security Documents) as may from time to time be reasonably requested by such Persons, provided that the Collateral Trustee shall have no obligation to do so and shall have no liability in connection with or failing to do so, to ensure that thesuch Additional Notes or the Additional Parity Lien Debt, as applicable, are secured by, and entitled to the benefits of, the Parity Lien Security Documents, and each Parity Lien Secured Party (by its acceptance of the benefits hereof) hereby agrees to, and authorizes the Collateral Trustee to enter into, any such technical amendments, modifications and/or supplements (and additional Parity Lien Security Documents). Each Obligor hereby further agrees that, if there are any recording, filing or other similar fees payable in connection with any of the actions to be taken pursuant to this Section 3.8(c) or Section 3.8(d), all such amounts shall be paid by, and shall be for the account of, the Parent and the other respective Obligors, on a joint and several basis.
(d) Without limitation of the foregoing, each Obligor agrees to take the following actions with respect to the Mortgaged Properties with respect to all Additional Parity Lien Debt (it being understood that any such actions may be taken following the incurrence of any such Additional Parity Lien Debt on a post-closing basis if permitted by the Parity Lien Representative for such Additional Parity Lien Debt) to the extent necessary to ensure that such Additional Parity Lien Debt is secured by, and entitled to the benefits of, the Parity Lien Security Documents with respect to such Mortgaged Properties:
(i) each applicable Obligor shall enter into, and deliver to the Collateral Trustee a mortgage modification or new mortgage, debenture, hypothec, deed of trust, deed to secure Indebtedness or similar document, instrument or agreement with regard to each Real Property subject to a mortgage, debenture, hypothec, deed of trust, deed to secure Indebtedness or similar document, instrument or agreement (each such mortgage, debenture, hypothec, deed of trust, deed to secure Indebtedness or similar document, instrument or agreement an “Additional Mortgage Instrument”), in proper form for recording in all applicable jurisdictions, in a form and substance reasonably satisfactory to the Collateral Trustee; and
(ii) each applicable Obligor will cause to be delivered to the Collateral Trustee a local counsel opinion (subject to customary assumptions, qualifications and exceptions and substantially similar to any such opinions delivered to it on the date of this Agreement as it relates to the subject matter thereof) to the effect that the Collateral Trustee has a valid and perfected Lien with respect to such Mortgaged Property.
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Additional Parity Lien Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any Parity Lien Obligations constituting Exchange Notes or Additional Notes or a Series of Parity Lien Debt that is issued or incurred after the date hereof hereof; provided thatthat except with respect to Exchange Notes:
(1) such Parity Lien Obligations are identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b); and
(2) unless such debt is issued under an existing Parity Lien Document for any Series of Parity Lien Debt whose Parity Lien Representative is already party to this Agreement, the designated Parity Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein and promptly delivers the same to the Collateral Trustee.
(b) The Company will be permitted to designate as an additional holder of Parity Lien Debt hereunder each Person who is, or who becomes, the registered holder of Parity Lien Debt incurred by the Company, any Grantor Company or any Guarantor after the date of this Agreement in accordance with the terms of all applicable Parity Lien Documents. The Company may only effect such designation by delivering to the Collateral Trustee an Additional Secured Parity Lien Debt Designation Certificate that:
(1) states that the Company or applicable Grantor intends to incur additional Parity Lien Debt (“Additional Parity Lien Debt”) that is permitted by each applicable Parity Lien Document to be incurred and to be secured with a Parity Lien equally and ratably with all previously existing and future Parity Lien Debt;
Appears in 1 contract
Additional Parity Lien Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred after the date hereof provided that:
(1) such Parity Lien Obligations are identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b); and
(2) unless such debt is issued under an existing Parity Lien Document for any Series of Parity Lien Debt whose Parity Lien Representative is already party to this Agreement, the designated Parity Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein and promptly delivers the same to the Collateral Trustee.
(b) The Company will be permitted to designate as an additional holder of Parity Lien Debt hereunder each Person who is, or who becomes, the registered holder of Parity Lien Debt incurred by the Company, any Grantor Company or any Guarantor after the date of this Agreement in accordance with the terms of all applicable Parity Lien Documents. The Company may only effect such designation by delivering to the Collateral Trustee an Additional Secured Parity Lien Debt Designation Certificate that:
(1) states that the Company or applicable Grantor intends to incur additional Parity Lien Debt (“Additional Parity Lien Debt”) that is permitted by each applicable Parity Lien Document to be incurred and to be secured with a Parity Lien equally and ratably with all previously existing and future Parity Lien Debt;
Appears in 1 contract
Additional Parity Lien Debt. (a) The Subject to Section 3.8(f), the Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred on or after the date hereof hereof, provided that:
(1i) such Parity Lien Obligations are identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b); and
(2ii) unless such debt is issued under an existing Parity Lien Document for any Series of Parity Lien Debt whose Parity Lien Representative is already party to this Agreement, the designated Parity Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein and promptly delivers the same to the Collateral Trustee.
(b) The Subject to Section 3.8(f), the Company will be permitted to designate as an additional holder of Parity Lien Debt hereunder each Person who is, or who becomes, the registered holder of Parity Lien Debt incurred by the Company, any Grantor or any Guarantor on or after the date of this Agreement in accordance with the terms of all applicable Parity Lien Documents. The Subject to Section 3.8(f), the Company may only effect such designation by delivering to the Collateral Trustee an Additional Secured Parity Lien Debt Designation Certificate that:
(1i) states that the Company or applicable Grantor intends to incur additional Parity Lien Debt (“Additional Parity Lien Debt”) that is permitted by each applicable Parity Lien Document to be incurred and to be secured with a Parity Lien equally and ratably with all previously existing and future Parity Lien Debt;
Appears in 1 contract
Additional Parity Lien Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred on or after the date hereof hereof, provided that:
(1i) such Parity Lien Obligations are identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b); and
(2ii) unless such debt is issued under an existing Parity Lien Document for any Series of Parity Lien Debt whose Parity Lien Representative is already party to this Agreement, the designated Parity Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein and promptly delivers the same to the Collateral Trustee.
(b) The Company will be permitted to designate as an additional holder of Parity Lien Debt hereunder each Person who is, or who becomes, the registered holder of Parity Lien Debt incurred by the Company, any Grantor or any Guarantor on or after the date of this Agreement in accordance with the terms of all applicable Parity Lien Documents. The Company may only effect such designation by delivering to the Collateral Trustee an Additional Secured Parity Lien Debt Designation Certificate that:
(1i) states that the Company or applicable Grantor intends to incur additional Parity Lien Debt (“Additional Parity Lien Debt”) that is permitted by each applicable Parity Lien Document to be incurred and to be secured with a Parity Lien equally and ratably with all previously existing and future Parity Lien Debt;
Appears in 1 contract
Additional Parity Lien Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred after the date hereof hereof; provided that:
(1) such Parity Lien Obligations are identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b); and
(2) unless such debt is issued under an existing Parity Lien Document for any Series of Parity Lien Debt whose Parity Lien Representative is already party to this Agreement, the designated Parity Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein an Additional Secured Debt Designation and promptly delivers the same to the Collateral Trustee.
(b) The Company will be permitted to designate as an additional holder of Parity Lien Debt hereunder each Person who is, or who becomes, the registered holder of Parity Lien Debt incurred by the Company, any Grantor Company or any Guarantor after the date of this Agreement in accordance with the terms of all applicable Parity Lien Documents. The Company may only effect such designation by delivering to the Collateral Trustee an Additional Secured Parity Lien Debt Designation Certificate that:
(1) states that the Company or applicable Grantor intends to incur additional Parity Lien Debt (“Additional Parity Lien Debt”) that is permitted by each applicable Parity Lien Document to be incurred and to be secured with a Parity Lien equally and ratably with all previously existing and future Parity Lien Debt;
Appears in 1 contract
Additional Parity Lien Debt. (a) The Collateral Trustee willwill act as trustee hereunder for, as collateral trustee hereunder, and perform its duties and undertakings set forth in Section 3.1(a) with respect to any this Agreement on behalf of, each holder of Parity Lien Obligations constituting Additional Notes or a in respect of each Series of Parity Lien Debt outstanding as of the date hereof and each Series of Parity Lien Debt that is issued or incurred after the date hereof provided (including any refinancing or replacement of a Series of Parity Lien Debt) that:
(1i) such holds Parity Lien Obligations that are identified as Parity Lien Debt such in accordance with the procedures set forth in Section 3.8(b); and
(2ii) unless such debt is issued under an existing Parity Lien Document for any Series of Parity Lien Debt whose Parity Lien Representative is already party to this Agreementsigns, the through its designated Parity Lien Representative identified pursuant to Section 3.8(b) signs ), a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein and promptly delivers the same to the Collateral TrusteeTrustee prior to or concurrently with the incurrence of such Series of Parity Lien Debt.
(b) The Company will be permitted to incur Indebtedness in respect of a new Series of Parity Lien Debt and to designate as an additional holder of Parity Lien Obligations hereunder the lenders and agents in respect of such Series of Parity Lien Debt hereunder and each Person who is, or who becomes, the registered holder of Parity Lien Debt incurred by the Company, any Grantor Company or any Guarantor other Grantor after the date of this Agreement Agreement, in each case, only to the extent such Indebtedness is designated by the Company in accordance with the following sentence and only to the extent such incurrence is permitted under the terms of all applicable the Parity Lien Documents. The Company may only effect such designation by delivering to the Collateral Trustee an Additional Secured Debt Designation that(with copies to the Priority Lien Collateral Agent (if any), the Notes Trustee and each other previously identified Parity Lien Representative), each of the following:
(1i) states that on or prior to the Company or applicable Grantor intends to incur date on which such additional Parity Lien Debt (the “Additional Parity Lien Debt”) is incurred, an Officers’ Certificate stating that the Company intends to incur such Additional Parity Lien Debt, and certifying that (A) such incurrence is permitted by each applicable and does not violate or result in any default under the Note Documents or any other then existing Parity Lien Document to be incurred and to be secured with a Documents (other than any incurrence of Parity Lien equally and ratably Obligations that would simultaneously repay all Parity Lien Obligations under the Parity Lien Documents under which such default would arise), (B) the definitive documentation associated with such Additional Parity Lien Debt contains a written agreement of the holders of such Indebtedness, for the enforceable benefit of all previously other holders of existing and future Parity Lien Obligations and each existing and future Parity Lien Representative substantially as follows: (x) that all Parity Lien Obligations will be and are secured equally and ratably by all Liens granted to the Collateral Trustee, for the benefit of the Secured Parties, at any time granted by any Grantor to secure any Parity Lien Obligations whether or not upon property otherwise constituting collateral to such Parity Lien Obligations and that all Liens granted pursuant to the Parity Lien Security Documents will be enforceable by the Collateral Trustee for the benefit of all Secured Parties equally and ratably as contemplated by this Agreement, (y) that the holders of Obligations in respect of such Additional Parity Lien Debt are bound by the provisions of, and agree to the terms of, the Intercreditor Agreement and this Agreement, including the provisions relating to the ranking of Liens and the order of application of proceeds from the enforcement of Liens and (z) consenting to and directing the Collateral Trustee to perform its obligations under this Agreement, the Intercreditor Agreement and the Parity Lien Security Documents; provided that such Additional Parity Lien Debt shall not be permitted to also constitute Priority Lien Debt, and (C) the Company and each other Grantor has duly authorized, executed (if applicable) and recorded (or caused to be recorded), or intends to authorize, execute and record (if applicable), in each appropriate governmental office all relevant filings and recordations, if any, necessary to ensure that the Obligations in respect of such Additional Parity Lien Debt are secured by the Collateral to the extent set forth in the Parity Lien Security Documents and in accordance with this Agreement, the Intercreditor Agreement and the Parity Lien Security Documents;
(ii) a written notice specifying the name and address of the Parity Lien Representative for such series of Additional Parity Lien Debt for purposes of Section 7.6; and
(iii) a copy of the executed Collateral Trust Joinder referred to in clause (a) above, executed by the applicable Parity Lien Representative (on behalf of each holder of Obligations in respect of such Additional Parity Lien Debt represented by it).
(c) Although the Company shall be required to deliver a copy of each of the foregoing documents described in clauses (i) through (iii) of Section 3.8(b) to the Priority Lien Collateral Agent (if any), the Notes Trustee and to each other then existing Parity Lien Debt Representative, the failure to so deliver a copy of any such document to the Priority Lien Collateral Agent (if any), the Notes Trustee and such other Parity Lien Debt Representative shall not affect the status of such Additional Parity Lien Debt as Parity Lien Obligations entitled to the benefits of this Agreement, the Intercreditor Agreement and the Parity Lien Security Documents if the other requirements of this Section 3.8 are complied with. Each of the Collateral Trustee and the other then existing Parity Lien Representative shall have the right to request that the Company shall provide a copy of any legal opinion of counsel (which may be provided by internal counsel to the Company) provided to the holders of Additional Parity Lien Debt or their respective Parity Lien Representatives as to the Additional Parity Lien Debt being secured by a valid and perfected security interest; provided, however, that such legal opinion or opinions need not address any collateral of a type or located in a jurisdiction not previously covered by any legal opinion delivered by or on behalf of the Company. Notwithstanding the foregoing, nothing in this Agreement will be construed to allow the Company or any other Grantor to incur additional Indebtedness unless otherwise permitted by the terms of all applicable Parity Lien Documents. The Liens granted in favor of the Collateral Trustee, for the benefit of the Secured Parties, shall be granted under the same Parity Lien Security Documents.
Appears in 1 contract
Additional Parity Lien Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred after the date hereof hereof; provided that:
(1) such Parity Lien Obligations are identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b); and
(2) unless such debt is issued under an existing Parity Lien Document for any Series except in the case of Parity Lien Debt whose Parity Lien Representative is already party to this AgreementAdditional Notes, the designated Parity Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein and promptly delivers the same to the Collateral Trustee.
(b) The Company will be permitted to designate as an additional holder of Parity Lien Debt hereunder each Person who is, or who becomes, the registered holder of Parity Lien Debt incurred by the Company, any Grantor Company or any Guarantor after the date of this Agreement in accordance with the terms of all applicable Parity Lien Documents, Priority Lien Documents and Junior Lien Documents. The Company may only effect such designation by delivering to the Collateral Trustee an Additional Secured Parity Lien Debt Designation Certificate that:
(1) states that the Company or applicable Grantor Obligor intends to incur additional Parity Lien Debt (“Additional Parity Lien Debt”) that is permitted by each applicable Parity Lien Document to be incurred and to be secured with a Parity Lien equally and ratably with all previously existing and future Parity Lien Debt;
Appears in 1 contract
Samples: Collateral Trust Agreement (Chesapeake Energy Corp)
Additional Parity Lien Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred after the date hereof provided to the extent that:
(1) such Parity Lien Obligations are identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b); and
(2) unless such debt is issued under an existing Parity Lien Document for any Series except in the case of Parity Lien Debt whose Parity Lien Representative is already party to this AgreementAdditional Notes, the designated Parity Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein and promptly delivers the same to the Collateral Trustee.
(b) The Company will be permitted to designate as an additional holder of Parity Lien Debt hereunder each Person who is, or who becomes, the registered holder of Parity Lien Debt incurred by the Company, any Grantor Company or any Subsidiary Guarantor after the date of this Agreement in accordance with the terms of all applicable Parity Lien Documents. The Company may only effect such designation by delivering to the Collateral Trustee an Additional Secured Parity Lien Debt Designation Certificate that:
(1) states that the Company or other applicable Grantor intends to incur additional Parity Lien Debt (“Additional Parity Lien Debt”) that is permitted by the Credit Agreement and each applicable Parity Lien Document to be incurred and to be secured with a Parity Lien equally and ratably with all previously existing and future Parity Lien Debt;
Appears in 1 contract
Additional Parity Lien Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) this Agreement with respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred after the date hereof provided thatif:
(1) such Parity Lien Obligations are Debt is identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b); and
(2) unless such debt Funded Debt is issued under an existing Parity Lien Document for any Series of Parity Lien Debt whose Parity Lien Representative is already party to this Agreement, the designated Parity Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein and promptly delivers the same to the Collateral Trustee.
(b) The Company Issuer will be permitted to designate as an additional holder of Parity Lien Debt hereunder each Person who is, or who becomes, the registered holder of Parity Lien any Funded Debt that is incurred by the Company, any Grantor Issuer or any Guarantor other Grantor after the date of this Agreement in accordance with the terms of all applicable Parity Lien Debt Documents. The Company Issuer may only effect such designation by delivering to the Collateral Trustee an Additional Secured Parity Lien Debt Designation that:
(1) states that the Company Issuer or applicable such other Grantor intends to incur additional Parity Lien Debt (“Additional Parity Lien Debt”) that is permitted which will be (as specified in such Additional Parity Lien Debt Designation) Parity Lien Debt not prohibited by each applicable any Parity Lien Document to be incurred and to be secured with a Parity Lien equally and ratably with all previously existing and future Parity Lien Debt;
(2) specifies the name and address of the Parity Lien Representative for such Additional Parity Lien Debt for purposes of this Agreement including Section 7.6;
(3) states that the Issuer and each other Grantor has duly authorized, executed (if applicable) and recorded (or caused to be recorded) in each appropriate governmental office all relevant filings and recordations to ensure that the Additional Parity Lien Debt is secured by the Collateral in accordance with the Parity Lien Security Documents;
(4) attaches as Exhibit 1 to such Additional Parity Lien Debt Designation a Reaffirmation Agreement in substantially the form attached as Exhibit 1 to Exhibit A, which Reaffirmation Agreement has been duly executed by the Issuer and each other Grantor and Guarantor; and
(5) states that the Issuer has caused a copy of the Additional Parity Lien Debt Designation and the related Collateral Trust Joinder to be delivered to each then existing Parity Lien Representative. Although the Issuer shall be required to deliver a copy of each Additional Parity Lien Debt Designation and each Collateral Trust Joinder to each then existing Parity Lien Representative, the failure to so deliver a copy of the Additional Parity Lien Debt Designation and/or Collateral Trust Joinder to any then existing Parity Lien Representative shall not affect the status of such debt as Additional Parity Lien Debt if the other requirements of this Section 3.8 are complied with. Each of the Collateral Trustee and any then existing Parity Lien Representative shall have the right to request that the Issuer provide a legal opinion of counsel as to the Additional Parity Lien Debt being secured by a valid and perfected security interest in the Collateral; provided, however, that such legal opinion or opinions need not address any collateral of a type or located in a jurisdiction not previously covered by any legal opinion delivered by or on behalf of the Issuer. Notwithstanding the foregoing, nothing in this Agreement will be construed to allow the Issuer or any other Grantor to incur additional Funded Debt or Liens if prohibited by the terms of any Parity Lien Documents.
(c) With respect to any Parity Lien Debt that is issued or incurred after the date hereof, the Issuer and each of the other Grantors agree to take such actions (if any) as may from time to time reasonably be requested by the Collateral Trustee, any Parity Lien Representative or any Act of Required Secured Parties, and enter into such technical amendments, modifications and/or supplements to the then existing Guarantees and Parity Lien Security Documents (or execute and deliver such additional Parity Lien Security Documents) as may from time to time be reasonably requested by such Persons (including as contemplated by clause (d) below), to ensure that the Additional Parity Lien Debt is secured by, and entitled to the benefits of, the relevant Parity Lien Security Documents, and each Parity Lien Secured Party (by its acceptance of the benefits hereof) hereby agrees to, and authorizes the Collateral Trustee to enter into, any such technical amendments, modifications and/or supplements (and additional Parity Lien Security Documents). The Issuer and each Grantor hereby further agree that, if there are any recording, filing or other similar fees payable in connection with any of the actions to be taken pursuant to this Section 3.8(c) or Section 3.8(d), all such amounts shall be paid by, and shall be for the account of, the Issuer and the respective Grantors, on a joint and several basis.
(d) Without limitation of the foregoing, to the extent required under any Parity Lien Document, the Issuer and each of the other Grantors agree to take the following actions with respect to any real property Collateral with respect to all Additional Parity Lien Debt:
(1) the Issuer and the other applicable Grantors shall enter into, and deliver to the Collateral Trustee a mortgage modification (each such modification, a “Modification”) or new mortgage or deed of trust with regard to each real property subject to a mortgage or deed of trust (each such mortgage or deed of trust a “Mortgage,” and each such property a “Mortgaged Property”), with such changes as may be required to account for local law matters, at the time of such incurrence, in proper form for recording in all applicable jurisdictions, in a form and substance reasonably satisfactory to the Collateral Trustee, the Controlling Representative and the Issuer and such other Grantors are jointly and severally liable to pay all filing and recording fees and taxes, documentary stamp taxes and other taxes, charges and fees, if any, necessary for filing or recording in the recording office of each jurisdiction where such real property to be encumbered thereby is situated;
(2) the Issuer or the applicable Grantor will cause to be delivered a local counsel opinion with respect to each such Mortgaged Property in form and substance, and issued by law firms, in each case, reasonably satisfactory to the Collateral Trustee and the Controlling Representative;
(3) the Issuer or the applicable Grantor will cause a title company reasonably acceptable to the Collateral Trustee and the Controlling Representative to have delivered to the Collateral Trustee a title insurance policy (or, as applicable, an endorsement to each title insurance policy previously delivered to the Collateral Trustee with respect to the Mortgage or Mortgages for such Parity Lien Obligations), date down(s) or other evidence reasonably satisfactory to the Collateral Trustee and the Controlling Representative (which may include a new title insurance policy) (each such delivery, a “Title Datedown Product”), in each case insuring that (i) the validity, enforceability and priority of the Liens of the applicable Mortgage(s) as security for the Parity Lien Obligations (including such Additional Parity Lien Debt) has not changed and, if a new Mortgage is entered into, that the Lien of such new Mortgage securing the Parity Lien Debt then being incurred shall be enforceable and have the same priority as any existing Mortgage securing then existing Parity Lien Obligations, as applicable, (ii) confirming and/or insuring that since the later of the original date of such title insurance product and the date of the Title Datedown Product delivered most recently prior to (and not in connection with) such Additional Parity Lien Debt, there has been no change in the condition of title and (iii) there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the applicable Mortgage(s), in each case other than with respect to Liens permitted by each Parity Lien Document (without adding any additional exclusions or exceptions to coverage); and
(4) the Issuer or the applicable Grantor shall, upon the request of the Collateral Trustee or the Controlling Representative, deliver to the approved title company, the Collateral Trustee and/or all other relevant third parties all other items reasonably necessary to record each such Mortgage and Modification, to issue a Title Datedown Product and to create, perfect or preserve the validity, enforceability and priority of the Lien of the mortgage(s) as set forth above and contemplated hereby and by the Parity Lien Documents.
Appears in 1 contract
Samples: Collateral Trust Agreement (Alliance One International, Inc.)
Additional Parity Lien Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred after the date hereof provided that:
(1) such Parity Lien Obligations are identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b); and
(2) unless such debt is issued under an existing Parity Lien Document for any Series of Parity Lien Debt whose Parity Lien Representative is already party to this Agreement, the designated Parity Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein and promptly delivers the same to the Collateral Trustee.
(b) The Company will be permitted to designate as an additional holder of Parity Lien Debt hereunder each Person who is, or who becomes, the registered holder of Parity Lien Debt incurred by the Company, any Grantor Company or any Subsidiary Guarantor (and Indebtedness in the form of Guarantees by Parent and Intermediate Holdco of Parity Lien Debt of the Company and the Subsidiary Guarantors) after the date of this Agreement in accordance with the terms of all applicable Parity Lien Documents. The Company may only effect such designation by delivering to the Collateral Trustee an Additional Secured Parity Lien Debt Designation Certificate that:
(1) states that the Company or applicable Grantor intends to incur additional Parity Lien Debt (“Additional Parity Lien Debt”) that is permitted by each applicable Parity Lien Document to be incurred and to be secured with a Parity Lien equally and ratably with all previously existing and future Parity Lien Debt;
(2) specifies the name, address and contact information of the Parity Lien Representative for such series of Additional Parity Lien Debt for purposes of Section 7.6;
(3) attaches as Exhibit 1 to such Additional Parity Lien Debt Certificate a Reaffirmation Agreement in substantially the form attached as Exhibit 1 to Exhibit A of this Agreement, which Reaffirmation Agreement has been duly executed by the Company and each Guarantor; and
(4) states that the Company has caused a copy of the Additional Parity Lien Debt Certificate and the related Collateral Trust Joinder to be delivered to each then existing Parity Lien Representative. Although the Company shall be required to deliver a copy of each Additional Parity Lien Debt Certificate and each Collateral Trust Joinder to each then existing Parity Lien Representative, the failure to so deliver a copy of the Additional Parity Lien Debt Certificate and/or Collateral Trust Joinder to any then existing Parity Lien Representative shall not affect the status of such debt as Additional Parity Lien Debt if the other requirements of this Section 3.8 are complied with. Each of the Collateral Trustee and the other then existing Parity Lien Representatives shall have the right to request that the Company shall provide a legal opinion or opinions of counsel (subject to customary assumptions and qualifications) as to the Additional Parity Lien Debt being secured by a valid and perfected security interest in the Collateral; provided that (i) such legal opinion or opinions need not address any collateral of a type not previously covered by any legal opinion delivered by or on behalf of the Company and (ii) nothing shall preclude such legal opinion or opinions from being delivered on a post-closing basis after the incurrence of such Additional Parity Lien Debt if permitted by the Parity Lien Representative for such Additional Parity Lien Debt. Notwithstanding the foregoing, nothing in this Agreement will be construed to allow the Company or any Subsidiary Guarantor to incur additional Indebtedness (including Additional Notes) (or, in the case of Parent and Intermediate Holdco, additional Guarantees of Indebtedness of the Company and the Subsidiary Guarantors) unless otherwise permitted by the terms of all applicable Parity Lien Documents.
(c) With respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred after the date hereof, the Company and each of the Guarantors agrees to take such actions (if any) as may from time to time reasonably be requested by the Collateral Trustee, any Parity Lien Representative or any Act of Parity Lien Debtholders, and enter into such technical amendments, modifications and/or supplements to the then existing Guarantees and Parity Lien Security Documents (or execute and deliver such additional Parity Lien Security Documents) as may from time to time be reasonably requested by such Persons (including as contemplated by clause (d) below), to ensure that the Additional Notes or the Additional Parity Lien Debt, as applicable, is secured by, and entitled to the benefits of, the Parity Lien Security Documents, and each Parity Lien Secured Party (by its acceptance of the benefits hereof) hereby agrees to, and authorizes the Collateral Trustee to enter into, any such technical amendments, modifications and/or supplements (and additional Parity Lien Security Documents). The Company and each Guarantor hereby further agrees that, if there are any recording, filing or other similar fees payable in connection with any of the actions to be taken pursuant to this Section 3.8(c) or Section 3.8(d), all such amounts shall be paid by, and shall be for the account of, the Company and the respective Guarantors, on a joint and several basis.
(d) Without limitation of the foregoing, each Grantor agrees to take the following actions with respect to any real property Collateral (including Oil and Gas Properties (as defined in the Indenture as in effect on the date hereof) with respect to all Additional Parity Lien Debt (it being understood that any such actions may be taken following the incurrence of any such Additional Parity Lien Debt on a post-closing basis if permitted by the Parity Lien Representative for such Additional Parity Lien Debt):
(1) each applicable Grantor shall enter into, and deliver to the Collateral Trustee a mortgage modification or new mortgage or deed of trust with regard to each real property subject to a mortgage or deed of trust (each such mortgage or deed of trust a “Mortgage” and each such property a “Mortgaged Property”), in proper form for recording in all applicable jurisdictions, in a form and substance reasonably satisfactory to the Collateral Trustee;
(2) each applicable Grantor will cause to be delivered a local counsel opinion (subject to customary assumptions and qualifications) to the effect that the Collateral Trustee has a valid and perfected Lien with respect to each such Mortgaged Property; and
(3) each applicable Grantor will cause a title company to have delivered to the Collateral Trustee an endorsement to each title insurance policy for any real property Collateral (excluding Oil and Gas Properties), if any, then in effect for the benefit of the Parity Lien Secured Parties, date down(s) or other evidence (which may include a new title insurance policy) (each such delivery, a “Title Datedown Product”), in each case insuring that (i) the priority of the Liens of the applicable Mortgage(s) as security for the Parity Lien Obligations has not changed and, if a new Mortgage is entered into, that the Lien of such new Mortgage securing the Parity Lien Debt then being incurred shall have the same priority as any existing Mortgage securing then existing Parity Lien Obligations, (ii) since the later of the original date of such title insurance product and the date of the Title Datedown Product delivered most recently prior to (and not in connection with) such additional Indebtedness, there has been no change in the condition of title and (iii) there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the applicable Mortgage(s), in each case other than with respect to Liens permitted by each Parity Lien Document. The Company will deliver an Officers’ Certificate to the Collateral Trustee confirming that the foregoing conditions have been satisfied.
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Additional Parity Lien Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any Parity Lien Obligations constituting Additional Notes or a Series of Parity Lien Debt that is issued or incurred after the date hereof provided that:
(1) such Parity Lien Obligations are Debt is identified as Parity Lien Debt in accordance with the procedures set forth in Section 3.8(b); and
(2) unless such debt is issued under an existing Parity Lien Document for any Series of Parity Lien Debt whose Parity Lien Representative is already party to this Agreement, the designated Parity Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and a joinder to the Intercreditor Agreement in the form provided therein and promptly delivers the same to the Collateral Trustee.
(b) The Company will be permitted to designate as an additional holder of “Parity Lien Debt Debt” hereunder each Person who is, or who becomes, the registered holder of any Parity Lien Debt incurred by the Company, any Grantor Company or any Guarantor after the date of this Agreement in accordance with the terms of all applicable Parity Lien Documents. The Company may only effect such designation by delivering to the Collateral Trustee an Additional Secured Debt Designation that:
(1) states that the Company or applicable Grantor Guarantor intends to incur additional Parity Lien Debt (“Additional Parity Lien Debt”) that is permitted by each applicable Parity Lien Document to be incurred and to be secured with a Parity Lien equally and ratably with all previously existing and future Parity Lien Debt;
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