Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Representative agrees on behalf of itself and the other Pension Fund Secured Parties that all Mortgages now or thereafter filed against real property in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.” (b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trustee, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.” (c) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Pension Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative (with respect to any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.” (d) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund ABL Representative agrees on behalf of itself and the other Pension Fund ABL Secured Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter filed against real property Real Property in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund ABL Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Notes Representative): “The lien created by this mortgage on the real property described herein is junior and subordinate to (i) the lien on such real property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association[INSERT NAME OF THEN APPLICABLE NOTES REPRESENTATIVE], as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such propertyNotes Representative, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to thereinAugust 31 2010, as amended, restated, supplemented amended and restated, modified, supplemented, renewed or otherwise modified replaced from time to time.”
(b) The Bank Group Each of the ABL Representative agrees on behalf of itself and the Notes Representative hereby acknowledges that, to the extent that it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over, or is otherwise noted as a lienholder on any certificate of title constituting, Common Collateral pursuant to the ABL Security Documents or the Notes Security Documents, as applicable, the ABL Representative and the Notes Representative, as applicable, each agree to hold or control such Common Collateral as bailee and as non-fiduciary agent for the Notes Representative or the ABL Representative, as applicable (such bailment and agency being intended, among other Bank Group things, to satisfy the requirements of Sections 9-313(c), 9-104, 9-105, 9-106, and 9-107 of the UCC and applicable certificate of title laws), solely for the purpose of perfecting the security interest (including any second-priority security interest) granted under the Notes Documents or the ABL Documents, as applicable, subject to the terms and conditions of this Section 2.6 (either the ABL Representative or the Notes Representative in such capacity, the “Control Representative”). Nothing in this Section 2.6 shall be construed to impose any duty on the ABL Representative or the Notes Representative (or any third party acting on either such Person’s behalf) or create any fiduciary relationship with respect to such Common Collateral or provide the Notes Representative, any other Notes Secured Party, the ABL Representative or any other ABL Secured Party, as applicable, with any rights with respect to such Common Collateral beyond those specified in this Agreement, the ABL Security Documents and the Notes Security Documents, as applicable, provided that subsequent to the occurrence of the ABL Obligations Payment Date (so long as the Notes Obligations Payment Date shall not have occurred), the ABL Representative shall (i) deliver to the Notes Representative, at the Loan Parties’ sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Notes Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs; provided, further, that subsequent to the occurrence of the Notes Obligations Payment Date (so long as the ABL Obligations Payment Date shall not have occurred), the Notes Representative shall (A) deliver to the ABL Representative, at the Loan Parties’ sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the ABL Documents or (B) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the ABL Secured Parties and the Notes Secured Parties and shall not impose on the ABL Secured Parties or the Notes Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that all Mortgages now would conflict with prior perfected Liens or thereafter filed any claims thereon in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have any other Person that is not a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trustee, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timeSecured Party.”
(c) The Convertible Note ABL Representative hereby agrees on behalf that after the ABL Obligations Payment Date and upon the written request of the Convertible Note Secured Parties Notes Representative, to the extent that all Mortgages now the applicable control agreement is in full force and effect and has not been terminated, the ABL Representative shall continue to act as the Control Representative for the Notes Representative (solely for the purpose of perfecting the security interest granted under the Notes Documents and at the expense of Loan Parties) with respect to the deposit account or thereafter filed against real property securities account that is the subject of such control agreement, until the earlier to occur of (i) 30 days after the ABL Obligations Payment Date and (ii) the date when a control agreement is executed in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Notes Representative to create a Junior Lien on Pension Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative (with respect to any Pension Fund Collateral such deposit account or securities account. The Notes Representative hereby agrees that after the Notes Obligations Payment Date and upon the written request of the ABL Representative, to the extent that the applicable control agreement is in respect of which full force and effect and has not been terminated, the Bank Group Notes Representative shall have a Senior Lien or a Junior Second Lien) and continue to act as the Pension Fund Control Representative for the ABL Representative (solely for the purpose of perfecting the security interest granted under the ABL Documents and at the expense of Loan Parties) with respect to any Pension Priority Common Collateralthe deposit account or securities account that is the subject of such control agreement, until the earlier to occur of (1) 30 days after the Notes Obligations Payment Date and shall contain (2) the following notation (or such other notation as date when a control agreement is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 executed in such property, in accordance with the provisions favor of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred Representative with respect to therein, as amended, restated, supplemented such deposit account or otherwise modified from time to timesecurities account.”
(d) The Convertible Note Until the Notes Obligations Payment Date, the ABL Representative agrees on behalf that to the extent it is in possession of any Common Collateral constituting Notes Priority Collateral, promptly upon the request of the Convertible Note Secured Parties Notes Representative at any time prior to the Notes Obligations Payment Date, the ABL Representative shall deliver to the Notes Representative any such Notes Priority Collateral held by it, and shall use commercially reasonable efforts to cause each ABL Creditor known to it to be holding such Notes Priority Collateral to deliver the same to the Notes Representative, together with any necessary endorsements without warranty or representation of any kind (or otherwise allow the Notes Representative to obtain control of such Notes Priority Collateral).
(e) Until the ABL Obligations Payment Date, the Notes Representative agrees that all Convertible Note Security Documents entered into to the extent it is in favor possession of or for any Common Collateral constituting ABL Priority Collateral, promptly upon the benefit request of the Convertible Note Secured Parties and/or ABL Representative at any time prior to the Convertible Note ABL Obligations Payment Date, the Notes Representative shall deliver to the ABL Representative any such ABL Priority Collateral held by it, and shall use commercially reasonable efforts to cause each Notes Creditor known to it to be holding such ABL Priority Collateral to deliver the same to the ABL Representative, together with any necessary endorsements without warranty or representation of any kind (or otherwise allow the ABL Representative to create a Junior Lien on Bank Group obtain control of such ABL Priority Collateral).
(f) The ABL Representative shall have no obligation whatsoever to the Notes Representative or any Notes Creditor to ensure that the Common Collateral is genuine or owned by any Loan Party or to preserve rights or benefits of any person except as expressly set forth in this Section 2.6. The duties or responsibilities of the ABL Representative under this Section 2.6 shall be in form reasonably satisfactory limited solely to holding or controlling the Bank Group Representative Common Collateral as bailee and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, non-fiduciary agent in accordance with this Section 2.6 and delivering the provisions Common Collateral upon the ABL Obligations Payment Date as provided in this Section 2.6. The Notes Representative shall have no obligation whatsoever to the ABL Representative or any ABL Creditor to ensure that the Common Collateral is genuine or owned by any Loan Party or to preserve rights or benefits of any person except as expressly set forth in this Section 2.6. The duties or responsibilities of the Amended Notes Representative under this Section 2.6 shall be limited solely to holding or controlling the Common Collateral as bailee and Restated Intercreditor Agreement dated non-fiduciary agent in accordance with this Section 2.6 and delivering the Common Collateral upon the Notes Obligations Payment Date as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of provided in this Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time2.6.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Representative Subordinate Creditor agrees that financing statements, or other filings or recordings filed or recorded by or on behalf of itself and the other Pension Fund Secured Parties Subordinate Creditor shall be in form reasonably satisfactory to the Senior Representative.
(b) Creditor agrees that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter filed against real property in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) Subordinate Creditor and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) all pledge and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed security agreements in favor of or and for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien Subordinate Creditor shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Senior Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): notation: “The lien [lien/security interest] created by this mortgage [mortgage/security or pledge agreement] on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust CompanyBank of America, N.A., as Collateral TrusteeAdministrative Agent (“Administrative Agent”) for the Lenders under the Credit Agreement among Encore Energy Partners Operating, LLC, Administrative Agent and its successors and assignsthe Lenders party thereto, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement (as amended, the “Subordination Agreement”) dated as of July 22March 7, 2011 2007, among JPMorgan Chase BankBank of America, National AssociationN.A., as Administrative Agent, Wilmington Trust CompanyEAP Operating, Inc., a Delaware corporation, as Pension Fund RepresentativeLender, U.S. Bank National AssociationEncore Energy Partners Operating LLC, a Delaware limited liability company, and Encore Energy Partners LP, a Delaware limited partnership, to the Senior Obligations (as defined therein), as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and more particularly described in the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timeSubordination Agreement”.”
(c) The Convertible Note Senior Representative agrees hereby acknowledges that, to the extent that it holds, or a third party holds on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the Senior Security Instruments, such possession or control is also for the benefit of the Convertible Note Secured Parties and/or Subordinate Creditor solely to the Convertible Note Representative extent required to create a Junior Lien on Pension Priority perfect its security interest in such Common Collateral Collateral. Nothing in the preceding sentence shall be in form reasonably satisfactory construed to impose any duty on the Bank Group Senior Representative (or any third party acting on its behalf) with respect to such Common Collateral or provide the Subordinate Creditor with any Pension Fund rights with respect to such Common Collateral beyond those specified in this Agreement and the Subordinate Security Instruments; provided that subsequent to the occurrence of the Senior Obligations Payment Date, the Senior Representative shall (i) deliver to the Subordinate Creditor, at the Borrower’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Subordinate Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs, and provided, further, that the provisions of this Agreement are intended solely to govern the respective rights and respective priorities as between the Senior Creditors and the Subordinate Creditor and shall not impose on the Senior Creditors any obligations in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to disposition of any Pension Priority Common Collateral) and shall contain the following notation Collateral (or such other notation as is reasonably acceptable to the Bank Group Representative any proceeds thereof) that would conflict with prior perfected Liens or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(d) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into claims thereon in favor of any other Person that is not a Senior Creditor or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timeSubordinate Creditor.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Samples: Intercreditor Agreement (Encore Energy Partners LP)
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Second Priority Representative on behalf of itself and the other Second Priority Secured Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Second Priority Representative with respect to the Common Collateral shall be in form reasonably satisfactory to the First Priority Representative.
(b) The Second Priority Representative agrees on behalf of itself and the other Pension Fund Second Priority Secured Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter hereafter filed against real property Real Property that constitutes Common Collateral in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Second Priority Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Second Priority Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund First Priority Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trusteethe First Priority Representative, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22June 7, 2011 among JPMorgan Chase Bank, National AssociationN.A., as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely Agent for purposes of Sections 3.1(c) and 11.3 thereofthe First Priority Secured Parties, JPMorgan Chase Bank, N.A., as ABL RepresentativeAdministrative Agent for the Second Priority Secured Parties, and YRC Worldwide Inc.SRAM, LLC, a Delaware limited liability company, as Borrower, SRAM Holdings, LLC, a Delaware limited liability company, and the other parties Loan Parties referred to therein, as amended, restated, modified or supplemented or otherwise modified from time to time.”
(c) The Convertible Note First Priority Representative agrees hereby acknowledges that, to the extent that it holds, or a third party holds on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the First Priority Security Documents, such possession, control is also for the benefit of and on behalf of, and the Convertible Note First Priority Representative or such third party holds such possession, control as bailee and agent for, the Second Priority Representative and the other Second Priority Secured Parties and/or solely to the Convertible Note Representative extent required to create a Junior Lien on Pension Priority perfect their security interest in such Common Collateral (such bailment and agency for perfection being intended, among other things, to satisfy the requirements of Sections 8-301(a)(2) and 9-313(c) of the Uniform Commercial Code). Nothing in the preceding sentence shall be in form reasonably satisfactory construed to impose any duty on the Bank Group First Priority Representative (or any third party acting on its behalf) with respect to such Common Collateral or provide the Second Priority Representative or any Pension Fund other Second Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in this Agreement and the Second Priority Security Documents, provided that subsequent to the occurrence of the First Priority Obligations Payment Date, the First Priority Representative shall (i) deliver to the Second Priority Representative, at the Borrower’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Second Priority Documents (and to the extent not so required, such delivery shall be made to the Borrower) or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs, and provided, further, that the provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Priority Secured Parties and the Second Priority Secured Parties and shall not impose on the First Priority Secured Parties any obligations in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to disposition of any Pension Priority Common Collateral) and shall contain the following notation Collateral (or such other notation as is reasonably acceptable to the Bank Group Representative any proceeds thereof) that would conflict with prior perfected Liens or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(d) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into claims thereon in favor of or for the benefit of the Convertible Note any other Person that is not a Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timeParty.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
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Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Representative Trustee on behalf of itself and the other Note Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Trustee shall be in form satisfactory to the Collateral Agent. Notwithstanding the foregoing, any such financing statement, filing or recording that is either (i) in the form approved by the Collateral Agent to be filed in favor of the Trustee concurrently with the execution and delivery of this Agreement or (ii) in the form filed by the Collateral Agent (and which contains a statement that the Lien of such filing or recording is junior and subordinate to the Lien in favor of the Collateral Agent), and in the case of either of the foregoing clauses (i) and (ii) which are certified to the Trustee and the Collateral Agent in an Officers’ Certificate as satisfying the requirements of said clauses, shall not require the approval of the Collateral Agent hereunder.
(b) The Trustee agrees on behalf of itself and the other Pension Fund Secured Note Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter filed against real property in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Representative to create a Junior Lien on Pension Fund Collateral Trustee shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) Collateral Agent and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust CompanyBank of America, as Collateral TrusteeN.A., and its successors and assigns, in such property, and securing “Lender Obligations” under and as defined in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 2004 among JPMorgan Chase Bankthe Obligor Parties, National AssociationBank of America, N.A., as Administrative AgentAgent and Collateral Agent for the Lenders, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Xxxxx Fargo Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(c) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor of or trustee for the benefit of Noteholders (in each case as defined in the Convertible Note Secured Parties and/or Intercreditor Agreement).” Notwithstanding the Convertible Note Representative to create a Junior Lien on Pension Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative (with respect to foregoing, any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as that is either (i) in the form approved by the Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(d) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into be filed in favor of the Trustee concurrently with the execution and delivery of this Agreement or for (ii) in the benefit form filed by the Collateral Agent (and which contains the foregoing statement that the Lien of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (such filing or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein recording is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Lien in favor of the Collateral Agent or as Administrative Agent (as applicableAgent), and in the case of either of the foregoing clauses (i) and (ii) which are certified to the Trustee and the Collateral Agent in an Officers’ Certificate as satisfying the requirements of said clauses shall not require the approval of the Collateral Agent hereunder.
(c) The Collateral Agent hereby acknowledges on behalf of itself and each of the Lenders (which acknowledgment shall be binding upon the Lenders) that, to the extent that it holds, or a third party holds on its successors behalf, physical possession of or “control” (as defined in the UCC) over Common Collateral pursuant to the Credit Agreement Documents, such possession or control is also for the benefit of the Trustee and assigns the other Note Parties solely to the extent required to perfect their security interest in such propertyCommon Collateral. Nothing in the preceding sentence shall be construed to impose any duty on the Collateral Agent (or any third party acting on its behalf) with respect to such Common Collateral or provide a Noteholder or any other Note Party with any rights with respect to such Common Collateral beyond those specified in this Agreement and the New Indenture Documents, provided that promptly following the occurrence of the Lender Obligations Payment Date, the Collateral Agent shall (x) deliver to the Trustee, at the Company’s sole cost and expense, the Common Collateral in accordance its possession or control together with any necessary endorsements to the extent required by the New Indenture Documents or (y) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs, and provided further that the provisions of this Agreement are intended solely to govern the Amended and Restated Intercreditor Agreement dated respective Lien priorities as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for between the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., Lender Parties and the Note Parties and shall not impose on the Lender Parties any obligations in respect of the disposition of any Common Collateral (or any Proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timePerson that is not a Secured Party.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
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Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund ABL Representative agrees on behalf of itself and the other Pension Fund ABL Secured Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter filed against real property Real Property in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund ABL Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust CompanyTC Lending, LLC, as Collateral Trustee, and its successors and assigns, in such propertyTerm Loan Representative, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22October [ ], 2011 among JPMorgan Chase Bank, National Association2019, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified amended from time to time.”
(cb) The Convertible Note Term Loan Representative on behalf of itself and the other Term Loan Secured Parties agrees that UCC-1 financing statements or other similar filings or recordings filed or recorded by or on behalf of the Convertible Note Term Loan Representative with respect to the Collateral shall be in form consistent with the UCC-1 financing statements and other similar filings filed or recorded by the ABL Representative.
(c) The ABL Representative on behalf of itself and the other ABL Secured Parties agrees that all Mortgages now patent, trademark or thereafter copyright filings or other similar filings or recordings filed against real property or recorded by or on behalf of the ABL Representative with respect to the Collateral shall be in favor form consistent with the such filings filed or recorded by the Term Loan Representative.
(d) The ABL Representative hereby acknowledges that, to the extent that it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Collateral pursuant to the ABL Security Documents, such possession or control is also for the benefit of the Convertible Note Term Loan Representative and the other Term Loan Secured Parties and/or solely to the Convertible Note Representative extent required to create a Junior Lien on Pension Priority Common Collateral perfect their security interest in such Collateral. Nothing in the preceding sentence shall be in form reasonably satisfactory construed to impose any duty on the Bank Group ABL Representative (or any third party acting on its behalf) with respect to such Collateral or provide the Term Loan Representative or any Pension Fund other Term Loan Secured Party with any rights with respect to such Collateral beyond those specified in this Agreement and the Term Loan Security Documents, provided that subsequent to the occurrence of the ABL Obligations Payment Date, the ABL Representative shall (i) deliver to the Term Loan Representative, at the Company’s sole cost and expense, the Collateral in its possession or control together with any necessary endorsements to the extent required by the Term Loan Documents or (ii) direct and deliver such Collateral as a court of competent jurisdiction otherwise directs, and provided, further, that the provisions of this Agreement are intended solely to govern the respective Lien priorities as between the ABL Secured Parties and the Term Loan Secured Parties and shall not impose on the ABL Secured Parties any obligations in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to disposition of any Pension Priority Common Collateral) and shall contain the following notation Collateral (or such other notation as is reasonably acceptable to the Bank Group Representative any proceeds thereof) that would conflict with prior perfected Liens or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(d) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into claims thereon in favor of or for the benefit of the Convertible Note any other Person that is not a Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timeParty.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Samples: Intercreditor Agreement
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Representative agrees Revolving Lender and each Revolving Credit Secured Party agrees, on the one hand, and the Term Loan Administrative Agent agrees, on behalf of itself and the other Pension Fund Term Loan Secured Parties that all Mortgages now or thereafter filed against real property in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached Parties, with respect to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to Term Loan Security Documents, on the Bank Group Representative (or other hand, that each such Security Document granting any Lien in the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall Collateral will contain the following notation legend (or such other notation as a legend substantially similar thereto): “Reference is reasonably acceptable made to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgageIntercreditor Agreement, deed dated as of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank__________________, National Association2015 among MIDCAP BUSINESS CREDIT LLC, as Collateral Agent or the Revolving Lender (as defined therein), XXXXXXX XXXXX BANK USA, as the Term Loan Administrative Agent (as applicabledefined therein), VERTEX ENERGY, INC., a Nevada corporation (“Holdings”), VERTEX ENERGY OPERATING, LLC, a Texas limited liability company, and its successors the subsidiaries of Holdings named therein (as amended, modified, restated, amended and assigns and restated or supplemented from time to time, the “Intercreditor Agreement”). Each Person that benefits from the security hereunder, by accepting the benefits of the security provided hereby, (i) consents (or is deemed to consent), to the subordination of Liens provided for in the Intercreditor Agreement, (ii) the lien on such property created by any mortgage, deed of trust agrees (or similar instrument now or hereafter granted is deemed to U.S. Bank National Association, as Collateral Trusteeagree) that it will be bound by, and its successors and assignswill take no actions contrary to, in each case in such property, in accordance with the provisions of the Amended Intercreditor Agreement, (iii) authorizes (or is deemed to authorize) the [Revolving Lender] [Term Loan Administrative Agent] on behalf of such Person to enter into, and Restated perform under, the Intercreditor Agreement dated as and (iv) acknowledges (or is deemed to acknowledge) that a copy of July 22the Intercreditor Agreement was delivered, 2011 among JPMorgan Chase Bankor made available, National Associationto such Person. Notwithstanding any other provision contained herein, as Administrative Agentthis Agreement, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., the Liens created hereby and the other parties referred rights, remedies, duties and obligations provided for herein are subject in all respects to thereinthe provisions of the Intercreditor Agreement. In the event of any conflict or inconsistency between the provisions of this Agreement and the Intercreditor Agreement, as amended, restated, supplemented or otherwise modified from time to timethe provisions of the Intercreditor Agreement shall control.”
(b) The Bank Group Representative agrees on behalf Each of itself the Revolving Lender and the other Bank Group Secured Parties Term Loan Administrative Agent hereby acknowledges that, to the extent that all Mortgages now it holds, or thereafter filed in favor a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral (including the Omega/Bango Financing Documents) pursuant to the Revolving Credit Security Documents or the Term Loan Security Documents, as applicable, whether as bailee for perfection or otherwise, such possession or control is also for the benefit of the Bank Group Representative against Pension Fund Collateral Term Loan Administrative Agent and the other Term Loan Secured Parties or the Revolving Lender and the other Revolving Credit Secured Parties, as applicable, solely to the extent required to perfect their Lien in respect of which such Common Collateral. Nothing in the Bank Group Representative shall have a Junior Lien preceding sentence shall be amended construed to impose any duty on the Revolving Lender or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation Term Loan Administrative Agent (or any third party acting on either such other notation as is reasonably acceptable Person’s behalf) with respect to such Common Collateral or provide the Bank Group Representative and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trustee, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Term Loan Administrative Agent, Wilmington Trust Companyany other Term Loan Secured Party, the Revolving Lender or any other Revolving Credit Secured Party, as Pension Fund Representativeapplicable, U.S. Bank National Associationwith any rights with respect to such Common Collateral beyond those specified in this Agreement, the Revolving Credit Security Documents and the Term Loan Security Documents, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”applicable; provided that:
(c) The Convertible Note Representative agrees on behalf subsequent to the occurrence of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor of or for Revolving Credit Obligations Payment Date (so long as the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Pension Priority Common Collateral Term Loan Obligations Payment Date shall be in form reasonably satisfactory not have occurred) and subject to the Bank Group Representative terms of any applicable Account Agreement, the Revolving Lender shall (with respect to any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lieni) and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) and shall contain the following notation (or such other notation as is reasonably acceptable deliver to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Term Loan Administrative Agent, Wilmington Trust Companyat the Loan Parties’ sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Term Loan Documents or (ii) direct and deliver such Common Collateral as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes a court of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or competent jurisdiction otherwise modified from time to time.”directs; and
(d) The Convertible Note Representative agrees on behalf subsequent to the occurrence of the Convertible Note Term Loan Obligations Payment Date (so long as the Revolving Credit Obligations Payment Date shall not have occurred), the Term Loan Administrative Agent shall (i) deliver to the Revolving Lender, at the Loan Parties’ sole cost and expense, the Common Collateral in its possession or control (including, but not limited to certificates of title, certificates evidencing Capital Stock, and promissory notes), together with any necessary endorsements to the extent required by the Revolving Credit Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the Revolving Credit Secured Parties and the Term Loan Secured Parties and (i) shall not impose on the Revolving Credit Secured Parties or the Term Loan Secured Parties any obligations in respect of the disposition of any Common Collateral (or any Proceeds thereof) that all Convertible Note Security Documents entered into would conflict with prior perfected Liens or any claims thereon in favor of or for the benefit any other Person that is not a Secured Party, and (ii) shall not constitute a subordination of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory Term Loan Obligations to the Bank Group Representative and shall contain Revolving Credit Obligations or the following notation (or such other notation as is reasonably acceptable Revolving Credit Obligations to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timeTerm Loan Obligations.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Second Priority Representative on behalf of itself and the other Second Priority Secured Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Second Priority Representative shall be in form satisfactory to the First Priority Representative.
(b) The Second Priority Representative agrees on behalf of itself and the other Pension Fund Second Priority Secured Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter filed against real property in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Second Priority Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group First Priority Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trustee, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(c) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Pension Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative (with respect to any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National AssociationN.A., as Collateral Agent or as Administrative Agent (as applicable)Agent, and its successors and assigns1 assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22October ___, 2011 2009 among JPMorgan Chase Bank, National AssociationN.A., as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc.Collateral Agent, and the other parties Loan Parties referred to therein, as amended, restated, supplemented or otherwise modified amended from time to time.”
(dc) The Convertible Note First Priority Representative agrees hereby acknowledges that, to the extent that it holds, or a third party holds on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into in favor its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the First Priority Security Documents, such possession or control is also for the benefit of the Convertible Note Second Priority Representative and the other Second Priority Secured Parties and/or solely to the Convertible Note extent required to perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty on the First Priority Representative (or any third party acting on its behalf) with respect to create a Junior Lien on Bank Group Priority such Common Collateral shall be or provide the Second Priority Representative or any other Second Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in form reasonably satisfactory this Agreement and the Second Priority Security Documents, provided that subsequent to the Bank Group occurrence of the First Priority Obligations Payment Date, the First Priority Representative and shall contain promptly upon the following notation request of the Second Priority Representative (or such other notation as is reasonably acceptable i) deliver to the Bank Group Second Priority Representative): “The lien created by this [agreement][mortgage] on , at the property described herein is junior Borrower’s sole cost and subordinate expense, the Common Collateral in its possession or control together with any necessary endorsements to the lien on extent required by the Second Priority Documents or (ii) direct and deliver such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, Common Collateral as Collateral Agent or as Administrative Agent (as applicable)a court of competent jurisdiction otherwise directs, and its successors and assigns in such propertyprovided, in accordance with further, that the provisions of this Agreement are intended solely to govern the Amended respective Lien priorities as between the First Priority Secured Parties and Restated Intercreditor Agreement dated as the Second Priority Secured Parties and shall not impose on the First Priority Secured Parties any obligations in respect of July 22the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party. Further, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund subsequent to the occurrence of the First Priority Obligations Payment Date and upon the request of the Second Priority Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes First Priority Representative shall promptly deliver notices of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred occurrence of the First Priority Obligations Payment Date to therein, as amended, restated, supplemented or otherwise modified from time all third party lien holders entitled to timereceive such notice pursuant to the terms of any applicable Third Party Intecreditor Agreement.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Samples: Intercreditor Agreement (Lions Gate Entertainment Corp /Cn/)
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Second Priority Representative on behalf of itself and the other Second Priority Secured Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Second Priority Representative shall be in form satisfactory to the First Priority Representative. The Third Priority Representative on behalf of itself and the other Third Priority Secured Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Third Priority Representative shall be in form satisfactory to the First Priority Representative and the Second Priority Representative.
(b) The Second Priority Representative agrees on behalf of itself and the other Pension Fund Second Priority Secured Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter filed against real property in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Second Priority Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group First Priority Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trustee, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(c) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Pension Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative (with respect to any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National AssociationN.A., as Collateral Agent or as Administrative Agent (as applicable)Agent, and its successors and assigns1 assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22June 16, 2011 2006 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL RepresentativeAdministrative Agent, and YRC Worldwide The Bank of New York Trust Company, N.A., as Collateral Agent, Mxxxxxx PCG, Inc., as Secured Party and the other parties Loan Parties referred to therein, as amended, restated, supplemented or otherwise modified amended from time to time.”
(d) ” The Convertible Note Third Priority Representative agrees on behalf of itself and the Convertible Note other Third Priority Secured Parties that all Convertible Note Security Documents entered into mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter filed against real property in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Third Priority Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group First Priority Representative and the Second Priority Representative and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative): notation: “The lien created by this [agreement][mortgage] mortgage on the property described herein is junior and subordinate to the lien on such property created by any security agreement mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National AssociationN.A., as Collateral Agent or as Administrative Agent (as applicable)Agent, and its successors and assigns assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington The Bank of New York Trust Company, N.A., as Collateral Agent, and its successors and assigns, in each case,such property, in accordance with the provisions of the Intercreditor Agreement dated as of June 16, 2006 among JPMorgan Chase Bank, N.A., as Administrative Agent, The Bank of New York Trust Company, N.A., as Collateral Agent, Mxxxxxx PCG, Inc., as Secured Party, and the Loan Parties referred to therein, as amended from time to time.”
(c) The First Priority Representative hereby acknowledges that, to the extent that it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the First Priority Security Documents, such possession or control is also for the benefit of the Second Priority Representative and the other Second Priority Secured Parties, and the Third Priority Representative and the other Third Priority Secured Parties, solely to the extent required to perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty on the First Priority Representative (or any third party acting on its behalf) with respect to such Common Collateral or provide the Second Priority Representative or any other Second Priority Secured Party, or the Third Priority Representative or any other Third Priority Secured Party, with any rights with respect to such Common Collateral beyond those specified in this Agreement and the Second Priority Security Documents or Third Priority Security Documents, as applicable; provided that subsequent to the occurrence of the First Priority Obligations Payment Date, the First Priority Representative shall (i) deliver to the Second Priority Representative, at the Borrower’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Second Priority Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs, and provided, further, that the provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Priority Secured Parties, the Second Priority Secured Parties and the Third Priority Secured Parties and shall not impose on the First Priority Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party.
(d) The Second Priority Representative hereby acknowledges that, to the extent that it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the Second Priority Security Documents, such possession or control is also for the benefit of the Third Priority Representative and the other Third Priority Secured Parties and the First Priority Representative and the other First Priority Secured Parties, solely to the extent required to perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty on the Second Priority Representative (or any third party acting on its behalf) with respect to such Common Collateral or provide the Third Priority Representative or any other Third Priority Secured Party, or the First Priority Representative or any other First Priority Secured Party, with any rights with respect to such Common Collateral beyond those specified in this Agreement and the Third Priority Security Documents or First Priority Security Documents, as applicable; provided that subsequent to the occurrence of the Second Priority Obligations Payment Date, the Second Priority Representative shall (i) deliver to the Third Priority Representative, at the Borrower’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Third Priority Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs, and provided, further, that the provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Priority Secured Parties, the Second Priority Secured Parties and the Third Priority Secured Parties and shall not impose on the Second Priority Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party.
(e) The Third Priority Representative hereby acknowledges that, to the extent that it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the Second Priority Security Documents, such possession or control is also for the benefit of the Second Priority Representative and the other Second Priority Secured Parties and the First Priority Representative and the other First Priority Secured Parties, solely to the extent required to perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty on the Third Priority Representative (or any third party acting on its behalf) with respect to such Common Collateral or provide the Second Priority Representative or any other Second Priority Secured Party, or the First Priority Representative or any other First Priority Secured Party, with any rights with respect to such Common Collateral beyond those specified in this Agreement and the Second Priority Security Documents or First Priority Security Documents, as applicable; provided that the provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Priority Secured Parties, the Second Priority Secured Parties and the Third Priority Secured Parties and shall not impose on the Third Priority Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party.
Appears in 1 contract
Samples: Intercreditor Agreement (Libbey Inc)
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Second Priority Representative on behalf of itself and the other Second Priority Secured Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Second Priority Representative shall be in form reasonably satisfactory to the First Priority Representative.
(b) The Second Priority Representative agrees on behalf of itself and the other Pension Fund Second Priority Secured Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter filed against real property in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Second Priority Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trustee, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(c) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Pension Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group First Priority Representative (with respect to any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National AssociationN.A., as Collateral Agent or as Administrative Agent (as applicable)Agent, and its successors and assigns1 assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22March __, 2011 2009 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL RepresentativeCollateral Agent, and YRC Worldwide Inc.Liberty Media Corporation, as Administrative Agent, and the other parties Loan Parties referred to therein, as amended, restated, modified or supplemented or otherwise modified from time to time.”
(dc) The Convertible Note First Priority Representative hereby acknowledges that, to the extent that it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the First Priority Security Documents, the First Priority Representative also holds such collateral as gratuitous bailee and agent for perfection for the Second Priority Representative (such bailment and agency for perfection being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the Uniform Commercial Code) and any assignee thereof solely to the extent required to perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty on the First Priority Representative (or any third party acting on its behalf) with respect to such Common Collateral or provide the Second Priority Representative or any other Second Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in this Agreement and the Second Priority Security Documents, provided that subsequent to the occurrence of the First Priority Obligations Payment Date, the First Priority Representative shall (i) deliver to the Second Priority Representative, at the Borrower’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Second Priority Documents or reasonably requested by the Second Priority Representative or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs, and provided, further, that the provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Priority Secured Parties and the Second Priority Secured Parties and shall not impose on the First Priority Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party. The First Priority Representative further agrees to take all such other action reasonably requested by the Second Priority Representative at the Borrower’s sole cost and expense in connection with the Second Priority Representative obtaining a first-priority interest in the Common Collateral upon the First Priority Obligations Payment Date. The Second Priority Representative, on behalf of itself and the Convertible Note Second Priority Secured Parties, agrees that the First Priority Secured Parties that all Convertible Note Security Documents entered into and the First Priority Representative have no duty to them in favor of or for the benefit respect of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (maintenance or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions preservation of the Amended and Restated Intercreditor Agreement dated as of July 22First Priority Collateral, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented First Priority Obligations or otherwise modified from time to timeotherwise.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Representative agrees Second Priority Representative, on behalf of itself and the other Pension Fund Second Priority Secured Parties Parties, agrees that all Mortgages now each patent, trademark or thereafter copyright filing or other filings or recordings (other than Uniform Commercial Code financing statements) filed against real property in favor of or for the benefit recorded by or on behalf of the Pension Fund Secured Parties and/or the Pension Fund Second Priority Representative to create a Junior Lien on Pension Fund in respect of applicable Common Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group Representative (or the Convertible Note Representative solely shall, to the extent the Bank Group Obligations Payment Date has occurred) and shall reasonably practicable, contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): notation: “The lien created by this mortgage hereby on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgageagreement, deed of trust filing or similar instrument recording now or hereafter granted to JPMorgan Chase BankThe Bank of New York Mellon Trust Company, National AssociationN.A., as Collateral Agent or as Administrative Agent (as applicableunder the First Priority Documents), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22January 30, 2011 2012, among JPMorgan Chase BankTHE BANK OF NEW YORK MELLON TRUST COMPANY, National AssociationN.A. as First Priority Representative, WILMINGTON TRUST, NATIONAL ASSOCIATION, as Administrative AgentSecond Priority Representative, Wilmington Trust CompanyST. LOUIS POST-DISPATCH LLC, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc.Borrower, and the other parties Loan Parties referred to therein, as amended, restated, supplemented or otherwise modified amended from time to time.”
(b) The Bank Group Representative agrees Second Priority Representative, on behalf of itself and the other Bank Group Second Priority Secured Parties Parties, agrees that all Mortgages mortgages, deeds of trust, deeds and similar instruments now or thereafter hereafter filed against real property comprising Common Collateral in favor of or for the benefit of the Bank Group Second Priority Representative against Pension Fund Collateral in respect of which and the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and other Second Priority Secured Parties shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington The Bank of New York Mellon Trust Company, N.A., as Collateral TrusteeAgent (under the First Priority Documents), and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22January 30, 2011 2012, among JPMorgan Chase BankTHE BANK OF NEW YORK MELLON TRUST COMPANY, National AssociationN.A. as First Priority Representative, WILMINGTON TRUST, NATIONAL ASSOCIATION, as Administrative Agent, Wilmington Trust Company, as Pension Fund Second Priority Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc.ST. LOUIS POST-DISPATCH LLC, and the other parties Loan Parties referred to therein, as amended, restated, supplemented or otherwise modified amended from time to time.”
(c) The Convertible Note First Priority Representative hereby acknowledges and agrees that, to the extent that it holds, or a third party holds on behalf its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the First Priority Security Documents, such possession or control is also for the benefit of, and the First Priority Representative or such third party holds such possession or control as bailee and agent for, the Second Priority Representative and the other Second Priority Secured Parties solely to the extent required to perfect their security interest in such Common Collateral (such bailment and agency for perfection being intended, among other things, to satisfy the requirements of Sections 8-301(a)(2) and 9-313(c) of the Convertible Note Uniform Commercial Code). Nothing in the preceding sentence shall be construed to impose any duty on the First Priority Representative (or any third party acting on its behalf) with respect to such Common Collateral or provide the Second Priority Representative or any other Second Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in this Agreement and the Second Priority Security Documents, provided that as soon as practicable after the occurrence of the events described in clauses (a), (b) and (c) of the definition of the First Priority Obligations Payment Date, the First Priority Representative shall (i) deliver, at the Borrower’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements (x) first, to the Second Priority Representative to the extent any Second Priority Obligations remain outstanding and (y) second, to the Borrower to the extent no First Priority Obligations or Second Priority Obligations remain outstanding, or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs, and provided, further, that the provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Priority Secured Parties and the Second Priority Secured Parties and shall not impose on the First Priority Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that all Mortgages now would conflict with prior perfected Liens or thereafter filed against real property any claims thereon in favor of any other Person that is not a Secured Party.
(d) To the extent that any deposit account or securities account of any Loan Party is subject to a control agreement in favor of the First Priority Representative, the First Priority Representative will act as bailee and agent for the Second Priority Representative solely to the extent required to perfect the Liens of the Second Priority Secured Parties in such deposit accounts and securities accounts and the cash and other assets therein. Nothing in the preceding sentence shall be construed to impose any duty on the First Priority Representative (or any third party acting on its behalf) with respect to such Common Collateral or provide the Second Priority Representative or any other Second Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in this Agreement and the Second Priority Security Documents. Unless the Second Priority Liens on such First Priority Collateral shall have been or concurrently are released, after the First Priority Obligations Payment Date, the First Priority Representative shall cooperate with the Loan Parties and the Second Priority Representative (at the expense of the Loan Parties) in permitting control of any deposit accounts and securities accounts to be transferred to the Second Priority Representative (or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative other arrangements with respect to create a Junior Lien on Pension Priority Common Collateral shall be in form each such deposit account and securities account reasonably satisfactory to the Bank Group Second Priority Representative (with respect to any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred Second Priority Documents to therein, as amended, restated, supplemented or otherwise modified from time to timebe made).”
(d) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
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Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Representative Trustee on behalf of itself and the other Note Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Trustee shall be in form satisfactory to the Collateral Agent. Notwithstanding the foregoing, any such financing statement, filing or recording that is either (i) in the form approved by the Collateral Agent to be filed in favor of the Trustee concurrently with the execution and delivery of this Agreement or (ii) in the form filed by the Collateral Agent (and which contains a statement that the Lien of such filing or recording is junior and subordinate to the Lien in favor of the Collateral Agent), and in the case of either of the foregoing clauses (i) and (ii) which are certified to the Trustee and the Collateral Agent in an Officers’ Certificate as satisfying the requirements of said clauses, shall not require the approval of the Collateral Agent hereunder.
(b) The Trustee agrees on behalf of itself and the other Pension Fund Secured Note Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter filed against real property in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Representative to create a Junior Lien on Pension Fund Collateral Trustee shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) Collateral Agent and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral TrusteeMxxxxx Sxxxxxx & Co. Incorporated, and its successors and assigns, in such property, and securing “Lender Obligations” under and as defined in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22March 24, 2011 2005, among JPMorgan Chase the Obligor Parties, Mxxxxx Sxxxxxx & Co. Incorporated, as Collateral Agent for the Lender Parties, and Wxxxx Fargo Bank, National Association, as Administrative trustee for the Noteholders (in each case as defined in the Intercreditor Agreement).” Notwithstanding the foregoing, any such mortgage, deed of trust or similar instrument that is either (i) in the form approved by the Collateral Agent to be filed in favor of the Trustee concurrently with the execution and delivery of this Agreement or (ii) in the form filed by the Collateral Agent (and which contains the foregoing statement that the Lien of such filing or recording is junior and subordinate to the Lien in favor of the Collateral Agent), Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes and in the case of Sections 3.1(ceither of the foregoing clauses (i) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., (ii) which are certified to the Trustee and the other parties referred to therein, Collateral Agent in an Officers’ Certificate as amended, restated, supplemented or otherwise modified from time to timesatisfying the requirements of said clauses shall not require the approval of the Collateral Agent hereunder.”
(c) The Convertible Note Representative Trustee agrees on behalf of itself and the Convertible other Note Secured Parties that all Mortgages UCC financing statements now or thereafter hereafter filed against real property in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Pension Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative (with respect to any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) and Trustee shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicablenotation, and the Convertible Note Representative): Trustee hereby authorizes the filing of any UCC amendment filing to add such notation: “The lien created evidenced by this mortgage on the property described herein financing statement is junior and subordinate subject to the lien on such property created by any mortgageterms of a certain Intercreditor Agreement, deed dated as of trust or similar instrument now or hereafter granted to JPMorgan Chase March 24, 2005, among Mxxxxx Sxxxxxx & Co. Incorporated, in its capacity as Collateral Agent, Wxxxx Fargo Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable)Trustee for the Noteholders, the Debtor, and its successors and assigns1 in such property, in accordance with the provisions certain affiliates of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified Debtor from time to timetime party thereto.”
(d) The Convertible Note Representative agrees Collateral Agent hereby acknowledges on behalf of itself and each of the Convertible Note Secured Parties Lenders (which acknowledgment shall be binding upon the Lenders) that, to the extent that all Convertible Note Security Documents entered into in favor it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the UCC) over Common Collateral pursuant to the Loan Agreement Documents, such possession or control is also for the benefit of the Convertible Trustee and the other Note Secured Parties and/or solely to the Convertible Note Representative extent required to create a Junior Lien perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty on Bank Group Priority the Collateral Agent (or any third party acting on its behalf) with respect to such Common Collateral or provide a Noteholder or any other Note Party with any rights with respect to such Common Collateral beyond those specified in this Agreement and the New Indenture Documents, provided that promptly following the occurrence of the Lender Obligations Payment Date, the Collateral Agent shall be in form reasonably satisfactory (x) deliver to the Bank Group Representative Trustee, at the Company’s sole cost and shall contain expense, the following notation (Common Collateral in its possession or such other notation as is reasonably acceptable control together with any necessary endorsements to the Bank Group Representative): “The lien created extent required by this [agreement][mortgage] on the property described herein is junior New Indenture Documents or (y) direct and subordinate to the lien on deliver such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, Common Collateral as Collateral Agent or as Administrative Agent (as applicable)a court of competent jurisdiction otherwise directs, and its successors and assigns in such property, in accordance with provided further that the provisions of this Agreement are intended solely to govern the Amended and Restated Intercreditor Agreement dated respective Lien priorities as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for between the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., Lender Parties and the Note Parties and shall not impose on the Lender Parties any obligations in respect of the disposition of any Common Collateral (or any Proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timePerson that is not a Secured Party.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Second Priority Representative on behalf of itself and the other Second Priority Secured Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Second Priority Representative shall be in form satisfactory to the First Priority Representative (the First Priority Representative agreeing to review promptly any such financing statements, filings and recordings and it being understood that any such financing statements, filings and recordings in a form substantially similar to a form previously approved by the First Priority Representative shall be deemed to be satisfactory).
(b) The Second Priority Representative agrees on behalf of itself and the other Pension Fund Second Priority Secured Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, "MORTGAGES") now or thereafter hereafter filed against real property in favor of or for the benefit of the Pension Fund Second Priority Representative and the other Second Priority Secured Parties and/or the Pension Fund Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group First Priority Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): “notation: "The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust CompanyBank of America, N.A., as Collateral TrusteeAgent, with respect to the First Priority Documents, and its their respective successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22May 3, 2011 2005 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL RepresentativeAdministrative Agent, and YRC Worldwide Inc.Bank of America, and the other parties referred to thereinN.A., as amendedCollateral Agent, restated, supplemented or otherwise modified from time to time.”
(c) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Pension Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative (with respect to any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to any Pension First Priority Common Collateral) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, Documents; JPMorgan Chase Bank, N.A., as ABL RepresentativeAdministrative Agent, and YRC Worldwide Inc.Wilmington Trust Company, as Collateral Agent, with respect to the Second Priority Documents; and the other parties Loan Parties referred to therein, as amended, restated, supplemented or otherwise modified amended from time to time.”"
(dc) The Convertible Note First Priority Representative agrees hereby acknowledges that, to the extent that it holds, or a third party holds on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into in favor its behalf, physical possession of or "control" (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the First Priority Security Documents, such possession or control is also for the benefit of the Convertible Note Second Priority Representative and the other Second Priority Secured Parties and/or solely to the Convertible Note extent required to perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty on the First Priority Representative (or any third party acting on its behalf) with respect to create a Junior Lien on Bank Group Priority such Common Collateral shall be or provide the Second Priority Representative or any other Second Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in form reasonably satisfactory this Agreement and the Second Priority Security Documents, provided that subsequent to the Bank Group occurrence of the First Priority Obligations Payment Date and so long as the Second Priority Obligations Payment Date has not occurred, the First Priority Representative and shall contain the following notation (or such other notation as is reasonably acceptable i) deliver to the Bank Group Second Priority Representative): “The lien created by this [agreement][mortgage] on , at the property described herein is junior Borrower's sole cost and subordinate expense, the Common Collateral in its possession or control together with any necessary endorsements to the lien on extent required by the Second Priority Documents or (ii) direct and deliver such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, Common Collateral as Collateral Agent or as Administrative Agent (as applicable)a court of competent jurisdiction otherwise directs, and its successors and assigns in such propertyprovided, in accordance with further, that the provisions of this Agreement are intended solely to govern the Amended and Restated Intercreditor Agreement dated respective Lien priorities as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for between the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., First Priority Secured Parties and the Second Priority Secured Parties and shall not impose on the First Priority Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other parties referred Person that is not a Secured Party. Notwithstanding any other provision of this Agreement to thereinthe contrary (other than this Section 2.3 and Section 4.2), the Second Priority Representative may take all actions as amended, restated, supplemented it reasonably deems necessary to continue or otherwise modified from time to timecreate the perfection of the Second Priority Lien on any Common Collateral so long as such actions are not in contravention of actions taken by the First Priority Representative.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Samples: Intercreditor Agreement (Dura Automotive Systems Inc)
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Second Priority Representative on behalf of itself and the other Second Priority Secured Parties agrees that UCC-1 financing statements (or analogous filings in any relevant jurisdiction), patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Second Priority Representative shall be in form satisfactory to the First Priority Representative.
(b) The Second Priority Representative agrees on behalf of itself and the other Pension Fund Second Priority Secured Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter filed against real property in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Second Priority Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group First Priority Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trustee, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(c) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Pension Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative (with respect to any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National AssociationN.A., as Collateral Agent or as Administrative Agent (as applicable)Agent, and its successors and assigns1 assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22October 30, 2011 2007 among JPMorgan Chase Bank, National AssociationN.A. (and its successors and assigns), as Administrative Agent, Wilmington Trust Company, First Priority Representative and as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Second Priority Representative, and YRC Worldwide Inc., and the other parties Loan Parties referred to therein, as amended, restated, supplemented or otherwise modified amended from time to time.”
(dc) The Convertible Note First Priority Representative agrees hereby acknowledges that, to the extent that it holds, or a third party holds on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into in favor its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code or analogous law in any relevant jurisdiction) over Common Collateral pursuant to the First Priority Security Documents, such possession or control is also for the benefit of the Convertible Note Second Priority Representative and the other Second Priority Secured Parties and/or solely to the Convertible Note extent required to perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty on the First Priority Representative (or any third party acting on its behalf) with respect to create a Junior Lien on Bank Group Priority such Common Collateral shall be or provide the Second Priority Representative or any other Second Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in form reasonably satisfactory this Agreement and the Second Priority Security Documents, provided that subsequent to the Bank Group occurrence of the First Priority Obligations Payment Date, the First Priority Representative and shall contain the following notation (or such other notation as is reasonably acceptable i) deliver to the Bank Group Second Priority Representative): “The lien created by this [agreement][mortgage] on , at the property described herein is junior Company’s sole cost and subordinate expense, the Common Collateral in its possession or control together with any necessary endorsements to the lien on extent required by the Second Priority Documents or (ii) direct and deliver such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, Common Collateral as Collateral Agent or as Administrative Agent (as applicable)a court of competent jurisdiction otherwise directs, and its successors and assigns in such propertyprovided, in accordance with further, that the provisions of this Agreement are intended solely to govern the Amended and Restated Intercreditor Agreement dated respective Lien priorities as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for between the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., First Priority Secured Parties and the Second Priority Secured Parties and shall not impose on the First Priority Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timePerson that is not a Secured Party.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Representative agrees Second Lien Trustee on behalf of itself and the other Pension Fund Secured Parties Second Lien Creditors agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Second Lien Trustee in connection with the initial issuance of Second Lien Notes (and on or prior to the date hereof) shall be in form satisfactory to the First Lien Agent.
(b) The First Lien Agent (on behalf of itself and the other First Lien Creditors) and Second Lien Trustee (on behalf of itself and the other Second Lien Creditors) agree that all Mortgages mortgages, deeds of trust, deeds, security agreements, financing statements and similar instruments now or thereafter hereafter executed, delivered and/or filed against any real or personal property in favor of or Second Lien Trustee for the benefit of the Pension Fund Secured Parties Second Lien Creditors shall (a) in the case of any such instruments executed, delivered and/or filed in connection with the Pension Fund Representative initial issuance of Second Lien Notes, (and on or prior to create a Junior Lien on Pension Fund Collateral shall the date hereof) be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group Representative First Lien Agent and (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurredb) and shall contain the following notation (or such other a similar notation as is reasonably acceptable satisfactory to the Bank Group Representative (or the Convertible Note Representative solely First Lien Agent): “Notwithstanding anything herein to the extent contrary, the Bank Group Obligations Payment Date has occurred) Lien and security interest granted to Second Lien Trustee pursuant to this Agreement and the Pension Fund Representative): exercise of any right or remedy by Second Lien Trustee hereunder are subject to the provisions of the Intercreditor Agreement, dated September 24, 2010 (as amended, restated, supplemented, or otherwise modified from time to time, the “Intercreditor Agreement”), among Union Bank, N.A., as First Lien Agent, The Bank of New York Mellon Trust Company, N.A., as Second Lien Trustee, Century Exploration New Orleans, Inc., Century Exploration Houston, Inc., and RAAM Global Energy Company, and other persons party or that may become party thereto from time to time. If there is a conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement will control. The lien created by this mortgage or evidenced hereby on the property described herein is junior junior, subordinate and subordinate inferior to (i) the lien any and all liens on such property created or evidenced by any mortgage, deed of trust trust, security agreement, financing statement or similar instrument now or hereafter granted to JPMorgan Chase Union Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral TrusteeN.A., and its successors and assigns, or any other “First Lien Creditor” (as such term is defined in each case the Intercreditor Agreement) in such property, in accordance with the provisions of the Amended and Restated such Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trustee, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timeAgreement.”
(c) The Convertible Note Representative agrees First Lien Agent hereby acknowledges that, to the extent that it holds, or a third party holds on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Collateral pursuant to the First Lien Security Documents, such possession or control is also for the benefit of the Convertible Note Secured Parties and/or Second Lien Trustee and the Convertible Note Representative to create a Junior other Second Lien on Pension Priority Common Collateral Creditors for purposes of perfecting their subordinate security interest in such Collateral. Nothing in the preceding sentence shall be in form reasonably satisfactory construed to impose any duty on the Bank Group Representative First Lien Agent (or any third party acting on its behalf) with respect to such Collateral or provide the Second Lien Trustee or any Pension Fund other Second Lien Creditor with any rights with respect to such Collateral beyond those specified in this Agreement and the Second Lien Security Documents; provided that subsequent to the occurrence of the First Lien Discharge Date, the First Lien Agent shall within five Business Days (as defined in the First Lien Agreement) thereafter (x) deliver to the Second Lien Trustee, at the First Lien Borrowers’ and Second Lien Borrower’s sole cost and expense, the Collateral in its possession or control together with any necessary endorsements to the extent required by the Second Lien Documents, or (y) direct and deliver such Collateral as a court of competent jurisdiction otherwise directs, and provided further that the provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Lien Creditors and the Second Lien Creditors, and shall not impose on the First Lien Agent or the First Lien Creditors any obligations in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to disposition of any Pension Priority Common Collateral) and shall contain the following notation Collateral (or such other notation as is reasonably acceptable to the Bank Group Representative any proceeds thereof) that would conflict with prior perfected Liens or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(d) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into claims thereon in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (or such any other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timePerson.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Second Priority Representative on behalf of itself and the other Second Priority Secured Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Second Priority Representative, subsequent to the date hereof, shall be in form satisfactory to the First Priority Creditor.
(b) The Second Priority Representative agrees on behalf of itself and the other Pension Fund Second Priority Secured Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter hereafter filed against real property Real Property that constitutes Common Collateral in favor of or for the benefit of the Pension Fund Second Priority Representative and the other Second Priority Secured Parties and/or the Pension Fund Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) First Priority Creditor and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trusteethe First Priority Creditor, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22September 15, 2011 2015 among JPMorgan Chase BankRanbaxy, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund RepresentativeInc., U.S. Bank National AssociationAssociation and InSite Vision Incorporated, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified amended from time to time.”
(c) The Convertible Note Representative agrees First Priority Creditor hereby acknowledges that, to the extent that it holds, or a third party holds on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the First Priority Security Documents, such possession or control is also for the benefit of and on behalf of, and the Convertible Note First Priority Creditor or such third party holds such possession or control as bailee and agent for, the Second Priority Representative and the other Second Priority Secured Parties and/or solely to the Convertible Note Representative extent required to create a Junior Lien on Pension Priority perfect their security interest in such Common Collateral (such bailment and agency for perfection being intended, among other things, to satisfy the requirements of Sections 8-301(a)(2) and 9-313(c) of the Uniform Commercial Code). Nothing in the preceding sentence shall be in form reasonably satisfactory construed to impose any duty on the Bank Group Representative First Priority Creditor (or any third party acting on its behalf) with respect to such Common Collateral or provide the Second Priority Representative or any Pension Fund other Second Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in this Agreement and the Second Priority Security Documents, provided that subsequent to the occurrence of the First Priority Obligations Payment Date, the First Priority Creditor shall (i) deliver to the Second Priority Representative, at the Company’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Second Priority Documents (and to the extent not so required, such delivery shall be made to the Company) or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs, and provided, further, that the provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Priority Secured Parties and the Second Priority Secured Parties and shall not impose on the First Priority Secured Parties any obligations in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to disposition of any Pension Priority Common Collateral) and shall contain the following notation Collateral (or such other notation as is reasonably acceptable to the Bank Group Representative any proceeds thereof) that would conflict with prior perfected Liens or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(d) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into claims thereon in favor of or for the benefit of the Convertible Note any other Person that is not a Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timeParty.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Representative Trustee on behalf of itself and the other Note Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Trustee shall be in form satisfactory to the Collateral Agent. Notwithstanding the foregoing, any such financing statement, filing or recording that is either (i) in the form approved by the Collateral Agent to be filed in favor of the Trustee concurrently with the execution and delivery of this Agreement or (ii) in the form filed by the Collateral Agent (and which contains a statement that the Lien of such filing or recording is junior and subordinate to the Lien in favor of the Collateral Agent), and in the case of either of the foregoing clauses (i) and (ii) which are certified to the Trustee and the Collateral Agent in an Officers' Certificate as satisfying the requirements of said clauses, shall not require the approval of the Collateral Agent hereunder.
(b) The Trustee agrees on behalf of itself and the other Pension Fund Secured Note Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, "mortgages") now or thereafter filed against real property in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Representative to create a Junior Lien on Pension Fund Collateral Trustee shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) Collateral Agent and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): “notation: "The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust CompanyBank of America, as Collateral TrusteeN.A., and its successors and assigns, in such property, and securing "Lender Obligations" under and as defined in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22September 24, 2011 2004 among JPMorgan Chase Bankthe Obligor Parties, National AssociationBank of America, N.A., as Administrative AgentAgent and Collateral Agent for the Lenders, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Xxxxx Fargo Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(c) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor of or trustee for the benefit of Noteholders (in each case as defined in the Convertible Note Secured Parties and/or Intercreditor Agreement)." Notwithstanding the Convertible Note Representative to create a Junior Lien on Pension Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative (with respect to foregoing, any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as that is either (i) in the form approved by the Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(d) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into be filed in favor of the Trustee concurrently with the execution and delivery of this Agreement or for (ii) in the benefit form filed by the Collateral Agent (and which contains the foregoing statement that the Lien of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (such filing or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein recording is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Lien in favor of the Collateral Agent or as Administrative Agent (as applicableAgent), and in the case of either of the foregoing clauses (i) and (ii) which are certified to the Trustee and the Collateral Agent in an Officers' Certificate as satisfying the requirements of said clauses shall not require the approval of the Collateral Agent hereunder.
(c) The Collateral Agent hereby acknowledges on behalf of itself and each of the Lenders (which acknowledgment shall be binding upon the Lenders) that, to the extent that it holds, or a third party holds on its successors behalf, physical possession of or "control" (as defined in the UCC) over Common Collateral pursuant to the Credit Agreement Documents, such possession or control is also for the benefit of the Trustee and assigns the other Note Parties solely to the extent required to perfect their security interest in such propertyCommon Collateral. Nothing in the preceding sentence shall be construed to impose any duty on the Collateral Agent (or any third party acting on its behalf) with respect to such Common Collateral or provide a Noteholder or any other Note Party with any rights with respect to such Common Collateral beyond those specified in this Agreement and the New Indenture Documents, provided that promptly following the occurrence of the Lender Obligations Payment Date, the Collateral Agent shall (x) deliver to the Trustee, at the Company's sole cost and expense, the Common Collateral in accordance its possession or control together with any necessary endorsements to the extent required by the New Indenture Documents or (y) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs, and provided further that the provisions of this Agreement are intended solely to govern the Amended and Restated Intercreditor Agreement dated respective Lien priorities as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for between the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., Lender Parties and the Note Parties and shall not impose on the Lender Parties any obligations in respect of the disposition of any Common Collateral (or any Proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timePerson that is not a Secured Party.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Second Priority Representative on behalf of itself and the other Second Priority Secured Parties agrees that (i) all UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Second Priority Representative shall be in form reasonably satisfactory to the First Priority Representative, (ii) all such perfection instruments filed by the Second Priority Representative shall be substantially identical to, and shall be filed after, those filed by the First Priority Representative and (iii) it shall provide the First Priority Representative with copies of any subsequent perfection instrument filed or recorded within five (5) Business Days of such filing or recordation.
(b) The Second Priority Representative agrees on behalf of itself and the other Pension Fund Second Priority Secured Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter filed against real property any tangible or intangible Common Collateral in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Second Priority Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trustee, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(c) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Pension Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group First Priority Representative (with respect to any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National AssociationN.A., as Collateral Agent or as Administrative Agent (as applicable)for certain First Priority Secured Parties, and its successors and assigns1 assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22June 23, 2011 2008 among JPMorgan Chase Bank, National AssociationN.A., as Administrative Agent, Wilmington Trust Company, as Pension Fund First Priority Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Second Priority Representative, and YRC Worldwide Inc., and the other parties Credit Parties referred to therein, as amended, restated, supplemented or otherwise modified amended from time to time.”
(dc) The Convertible Note First Priority Representative agrees hereby acknowledges that, to the extent that it holds, or a third party holds on behalf its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code including, without limitation, control or possession of money or deposit accounts pursuant to Section 9-313 or 9-314 of the Convertible Note Secured Parties that all Convertible Note UCC) or as bailee (such bailment, intended among other things to satisfy the requirements of Section 8-106(d)3, 8-301(a)(2) and 9-313(c) of the UCC), over Common Collateral pursuant to the First Priority Security Documents entered into in favor of Documents, such possession, control or bailment is also for the benefit of the Convertible Note Second Priority Representative and the other Second Priority Secured Parties and/or solely to the Convertible Note extent required to perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty on the First Priority Representative (or any third party acting on its behalf) with respect to create a Junior Lien on Bank Group Priority such Common Collateral shall be or provide the Second Priority Representative or any other Second Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in form reasonably satisfactory this Agreement and the Second Priority Security Documents, provided that subsequent to the Bank Group occurrence of the First Priority Obligations Payment Date, the First Priority Representative and shall contain the following notation (or such other notation as is reasonably acceptable shall, unless otherwise directed by a court of competent jurisdiction, deliver to the Bank Group Second Priority Representative): “The lien created by this [agreement][mortgage] on , at the property described herein is junior Credit Parties’ sole cost and subordinate expense, the Common Collateral in its possession or control together with any necessary endorsements to the lien on such property created extent required by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable)the Second Priority Documents, and its successors and assigns in such propertyprovided, in accordance with further, that the provisions of this Agreement are intended solely to govern the Amended respective Lien priorities as between the First Priority Secured Parties and Restated Intercreditor Agreement dated the Second Priority Secured Parties and shall not impose on the First Priority Secured Parties any obligations in respect of the disposition of any Common Collateral (or any Proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party.
(d) The Second Priority Representative hereby acknowledges that, to the extent that it holds subsequent to the First Priority Obligations Payment Date, or a third party then holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code including, without limitation, control or possession of July 22money or deposit accounts pursuant to Section 9-313 or 9-314 of the UCC) or as bailee (such bailment, 2011 intended among JPMorgan Chase Bankother things to satisfy the requirements of Section 8-106(d)3, National Association8-301(a)(2) and 9-313(c) of the UCC), as Administrative Agentover Common Collateral pursuant to the Second Priority Security Documents, Wilmington Trust Companysuch possession, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely control or bailment is also for the purposes benefit of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., the First Priority Representative and the other parties referred First Priority Secured Parties solely to thereinthe extent required to perfect their security interest in such Common Collateral for obligations, as amendedif any, restated, supplemented under the First Priority Documents in excess of the First Priority Obligations. Nothing in the preceding sentence shall be construed to impose any duty on the Second Priority Representative (or otherwise modified from time any third party acting on its behalf) with respect to time.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: such Common Collateral or provide the First Priority Representative or any other First Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in this Agreement and the lien on such property created First Priority Security Documents, provided that subsequent to the satisfaction of the obligations under the Second Priority Documents, the Second Priority Representative shall, unless otherwise directed by a court of competent jurisdiction, deliver to the First Priority Representative, at the Credit Parties’ sole cost and expense, the Common Collateral in its possession or control together with any mortgage, deed of trust or similar instrument now or hereafter granted necessary endorsements to Wilmington Trust Company, as Agentthe extent required by the First Priority Documents, and its successors provided, further, that the provisions of this section are intended solely to govern the respective Lien priorities as between the First Priority Secured Parties and assigns, the Second Priority Secured Parties subsequent to the satisfaction of the obligations under the Second Priority Documents and shall not impose on the Second Priority Secured Parties any obligations in each case,respect of the disposition of any Common Collateral (or any Proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party.
Appears in 1 contract
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Representative Each of the Subordinated Creditors agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of itself the Subordinated Creditors prior to the Senior Obligations Repayment Date shall be in form reasonably satisfactory to the Senior Agent.
(b) Each of the Subordinated Creditors agrees that prior to the Senior Obligations Repayment Date all mortgages, deeds of trust, deeds and the other Pension Fund Secured Parties that all Mortgages similar instruments (collectively, “mortgages”) now or thereafter hereafter filed against real property in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached Subordinated Creditors with respect to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Subordinated Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trustee, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(c) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Pension Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative (with respect to any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) Agent and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National AssociationN.A., as Collateral Agent or as Administrative Agent (as applicable)Agent, and its successors and assigns1 assigns, in such property, in accordance with the provisions of the Amended Subordination and Restated Intercreditor Agreement dated as of July 22, 2011 __,2006 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL RepresentativeAdministrative Agent, and YRC Worldwide Inc., the Subordinated Creditors and the other parties Loan Parties referred to therein, as amended, restated, supplemented or otherwise modified amended from time to time.”
(dc) The Convertible Note Representative agrees Senior Agent hereby acknowledges that, to the extent that it holds, or a third party holds on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into in favor its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the Senior Security Documents, such possession or control is also for the benefit of the Convertible Note Secured Parties and/or Subordinated Creditors solely to the Convertible Note Representative extent required to create a Junior Lien perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty on Bank Group Priority the Senior Agent (or any third party acting on its behalf) with respect to such Common Collateral shall be (other than to act in form reasonably satisfactory a commercially reasonable manner with respect to the Bank Group Representative and shall contain the following notation (or such other notation as is reasonably acceptable Common Collateral to the Bank Group Representative): “The lien created by extent required under the Uniform Commercial Code) or provide the Subordinated Creditors with any rights with respect to such Common Collateral beyond those specified in this [agreement][mortgage] on Agreement and the property described herein is junior and subordinate Subordinated Security Documents, provided that subsequent to the lien on occurrence of the Senior Obligations Repayment Date, the Senior Agent shall (x) deliver to the Subordinated Creditors with respect to the Subordinated Obligations, at the Borrower’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent reasonably requested by the Subordinated Creditors or (y) direct and deliver such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, Common Collateral as Collateral Agent or as Administrative Agent (as applicable)a court of competent jurisdiction otherwise directs, and its successors and assigns in such propertyprovided, in accordance with further, that the provisions of this Agreement are intended solely to govern the Amended and Restated Intercreditor Agreement dated respective Lien priorities as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for between the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., Senior Creditors and the Subordinated Creditors and shall not impose on the Senior Creditors any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timePerson that is not a Secured Party.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Representative Each of the Subordinated Creditors agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of itself the Subordinated Creditors prior to the Senior Obligations Repayment Date shall be in form reasonably satisfactory to the Senior Agent.
(b) Each of the Subordinated Creditors agrees that prior to the Senior Obligations Repayment Date all mortgages, deeds of trust, deeds and the other Pension Fund Secured Parties that all Mortgages similar instruments (collectively, “mortgages”) now or thereafter hereafter filed against real property in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached Subordinated Creditors with respect to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Subordinated Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trustee, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(c) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Pension Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative (with respect to any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) Agent and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National AssociationN.A., as Collateral Agent or as Administrative Agent (as applicable)Agent, and its successors and assigns1 assigns, in such property, in accordance with the provisions of the Amended Subordination and Restated Intercreditor Agreement dated as of July 2219, 2011 2006 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL RepresentativeAdministrative Agent, and YRC Worldwide Inc., the Subordinated Creditors and the other parties Loan Parties referred to therein, as amended, restated, supplemented or otherwise modified amended from time to time.”
(dc) The Convertible Note Representative agrees Senior Agent hereby acknowledges that, to the extent that it holds, or a third party holds on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into in favor its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the Senior Security Documents, such possession or control is also for the benefit of the Convertible Note Secured Parties and/or Subordinated Creditors solely to the Convertible Note Representative extent required to create a Junior Lien perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty on Bank Group Priority the Senior Agent (or any third party acting on its behalf) with respect to such Common Collateral shall be (other than to act in form reasonably satisfactory a commercially reasonable manner with respect to the Bank Group Representative and shall contain the following notation (or such other notation as is reasonably acceptable Common Collateral to the Bank Group Representative): “The lien created by extent required under the Uniform Commercial Code) or provide the Subordinated Creditors with any rights with respect to such Common Collateral beyond those specified in this [agreement][mortgage] on Agreement and the property described herein is junior and subordinate Subordinated Security Documents, provided that subsequent to the lien on occurrence of the Senior Obligations Repayment Date, the Senior Agent shall (x) deliver to the Subordinated Creditors with respect to the Subordinated Obligations, at the Borrower’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent reasonably requested by the Subordinated Creditors or (y) direct and deliver such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, Common Collateral as Collateral Agent or as Administrative Agent (as applicable)a court of competent jurisdiction otherwise directs, and its successors and assigns in such propertyprovided, in accordance with further, that the provisions of this Agreement are intended solely to govern the Amended and Restated Intercreditor Agreement dated respective Lien priorities as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for between the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., Senior Creditors and the Subordinated Creditors and shall not impose on the Senior Creditors any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timePerson that is not a Secured Party.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Samples: Subordinated Credit Agreement (Virgin Mobile USA, Inc.)
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Second Priority Representative on behalf of itself and the other Second Priority Secured Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Second Priority Representative shall be in form satisfactory to the First Priority Representative.
(b) The Second Priority Representative agrees on behalf of itself and the other Pension Fund Second Priority Secured Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter filed against real property or interests therein in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Second Priority Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group First Priority Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust CompanyPNC Bank, National Association (whether individually or in its capacity as Collateral Trusteeagent for lenders or other financial institutions), and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22December 1, 2011 2005 among JPMorgan Chase PNC Bank, National Association, as Administrative Agentagent for various first priority secured parties, Wilmington Trust CompanyORIX Finance Corp., as Pension Fund Representativeagent for various second priority secured parties, U.S. Bank National AssociationInsight Equity A.P. X, as Convertible Note Representative, solely for purposes of Sections 3.1(c) LP and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, its various subsidiaries and YRC Worldwide Inc., and the other parties referred to thereinaffiliates, as amended, restatedsupplemented, supplemented restated or otherwise modified from time to time.”
(c) The Convertible Note First Priority Representative agrees hereby acknowledges that, to the extent that it holds, or a third party holds on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the First Priority Security Documents, such possession or control is also for the benefit of the Convertible Note Second Priority Representative and the other Second Priority Secured Parties and/or solely to the Convertible Note Representative extent required to create a Junior Lien on Pension Priority perfect their security interest in such Common Collateral Collateral. Nothing in the preceding sentence shall be in form reasonably satisfactory construed to impose any duty on the Bank Group First Priority Representative (or any third party acting on its behalf) with respect to such Common Collateral or provide the Second Priority Representative or any Pension Fund other Second Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in this Agreement and the Second Priority Security Documents, provided that, subsequent to the occurrence of the First Priority Obligations Payment Date, the First Priority Representative shall (i) deliver to the Second Priority Representative, at the Borrower’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Second Priority Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs, and provided further that the provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Priority Secured Parties and the Second Priority Secured Parties and shall not impose on the First Priority Secured Parties any obligations in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to disposition of any Pension Priority Common Collateral) and shall contain the following notation Collateral (or such other notation as is reasonably acceptable to the Bank Group Representative any proceeds thereof) that would conflict with prior perfected Liens or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(d) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into claims thereon in favor of or for the benefit of the Convertible Note any other Person that is not a Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timeParty.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Second Priority Representative on behalf of itself and the other Second Priority Secured Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Second Priority Representative with respect to the Common Collateral shall be in form satisfactory to the First Priority Representative.
(b) The Second Priority Representative agrees on behalf of itself and the other Pension Fund Second Priority Secured Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter hereafter filed against real property Real Property that constitutes Common Collateral in favor of or for the benefit of the Pension Fund Second Priority Representative and the other Second Priority Secured Parties and/or the Pension Fund Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group First Priority Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trusteethe First Priority Representative, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22December _____, 2011 2010 among JPMorgan Chase Xxxxxx Xxxxxxx Senior Funding Inc., as Collateral Agent for the First Priority Secured Parties, U.S. Bank, National Association, as Administrative AgentCollateral Agent for the Second Priority Secured Parties, Wilmington Trust CompanySwift Transportation Co., LLC, a Delaware limited liability company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc.Borrower, and the other parties Loan Parties referred to therein, as amended, restated, modified or supplemented or otherwise modified from time to time.”
(c) The Convertible Note First Priority Representative agrees hereby acknowledges that, to the extent that it holds, or a third party holds on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over, or has a notation of its lien on any certificate of title with respect to, Common Collateral pursuant to the First Priority Security Documents, such possession, control or notation of title is also for the benefit of and on behalf of, and the Convertible Note First Priority Representative or such third party holds such possession, control or the benefit of such notation of title as bailee and agent for, the Second Priority Representative and the other Second Priority Secured Parties and/or solely to the Convertible Note Representative extent required to create a Junior Lien on Pension Priority perfect their security interest in such Common Collateral (such bailment and agency for perfection being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the Uniform Commercial Code). Nothing in the preceding sentence shall be in form reasonably satisfactory construed to impose any duty on the Bank Group First Priority Representative (or any third party acting on its behalf) with respect to such Common Collateral or provide the Second Priority Representative or any Pension Fund other Second Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in this Agreement and the Second Priority Security Documents, provided that subsequent to the occurrence of the First Priority Obligations Payment Date, the First Priority Representative shall (i) deliver to the Second Priority Representative, at the Borrower’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Second Priority Documents (and to the extent not so required, such delivery shall be made to the Borrower) or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs, and provided, further, that the provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Priority Secured Parties and the Second Priority Secured Parties and shall not impose on the First Priority Secured Parties any obligations in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to disposition of any Pension Priority Common Collateral) and shall contain the following notation Collateral (or such other notation as is reasonably acceptable to the Bank Group Representative any proceeds thereof) that would conflict with prior perfected Liens or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(d) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into claims thereon in favor of or for the benefit of the Convertible Note any other Person that is not a Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timeParty.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Representative agrees Each Junior Priority Representative, on behalf of itself and the other Pension Fund Junior Priority Secured Parties it represents, agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded on behalf of the Junior Priority Secured Parties shall be in form reasonably satisfactory to the First Priority Representative.
(b) Each Junior Priority Representative, on behalf of itself and the other Junior Priority Secured Parties it represents, agrees that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter filed against real property in favor of or and for the benefit of the Pension Fund Junior Secured Parties and/or the Pension Fund Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group First Priority Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund First Priority Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trusteethe First Priority Representative, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated that certain Intercreditor Agreement dated as of July 22August 4, 2011 2009 among JPMorgan Chase BankBank of America, National AssociationN.A., as First Priority Administrative Agent and First Priority Collateral Agent, Wilmington Trust CompanyCredit Suisse, as Pension Fund RepresentativeSecond Lien Collateral Agent, U.S. Bank National Association, Association as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., Third Lien Collateral Agent and the other parties Loan Parties referred to therein, as amended, restated, modified or supplemented or otherwise modified from time to time.”
(c) The Convertible Note First Priority Representative agrees hereby acknowledges that, to the extent that it holds, or a third party holds on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the First Priority Security Documents, such possession or control is also for the benefit of the Convertible Note Junior Priority Representatives and the other Junior Priority Secured Parties and/or solely to the Convertible Note Representative extent required to create a Junior Lien on Pension Priority perfect their security interest in such Common Collateral Collateral. Nothing in the preceding sentence shall be in form reasonably satisfactory construed to impose any duty on the Bank Group First Priority Representative (or any third party acting on its behalf) with respect to such Common Collateral or provide the Junior Priority Representatives or any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a other Junior Second Lien) and the Pension Fund Representative (Priority Secured Party with any rights with respect to any Pension such Common Collateral beyond those specified in this Agreement and the Junior Priority Common CollateralSecurity Documents, provided that promptly subsequent to the occurrence of the First Priority Obligations Payment Date, the First Priority Representative shall (i) deliver to the applicable Junior Priority Representative, at the direction of the Second Priority Representative and shall contain the following notation (or such other notation Third Priority Representative as is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, determined between them in accordance with the Junior Priority Intercreditor Agreement, at the Company’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Junior Priority Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs, and provided, further, that the provisions of this Agreement are intended solely to govern the Amended and Restated Intercreditor Agreement dated respective Lien priorities as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for between the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., First Priority Secured Parties and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(d) The Convertible Note Representative agrees Junior Priority Secured Parties and shall not impose on behalf the First Priority Secured Parties any obligations in respect of the Convertible Note Secured Parties disposition of any Common Collateral (or any proceeds thereof) that all Convertible Note Security Documents entered into would conflict with prior perfected Liens or any claims thereon in favor of or for the benefit of the Convertible Note any other Person that is not a Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timeParty.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Samples: Intercreditor Agreement (Commercial Vehicle Group, Inc.)
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Second Priority Representative on behalf of itself and the other Second Priority Secured Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Second Priority Representative with respect to the Common Collateral shall be in form satisfactory to the First Priority Representative.
(b) The Second Priority Representative agrees on behalf of itself and the other Pension Fund Second Priority Secured Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter hereafter filed against real property Real Property that constitutes Common Collateral in favor of or for the benefit of the Pension Fund Second Priority Representative and the other Second Priority Secured Parties and/or the Pension Fund Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group First Priority Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trusteethe First Priority Representative, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22December , 2011 2010 among JPMorgan Chase Xxxxxx Xxxxxxx Senior Funding Inc., as Collateral Agent for the First Priority Secured Parties, U.S. Bank, National Association, as Administrative AgentCollateral Agent for the Second Priority Secured Parties, Wilmington Trust CompanySwift Transportation Co., LLC, a Delaware limited liability company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc.Borrower, and the other parties Loan Parties referred to therein, as amended, restated, modified or supplemented or otherwise modified from time to time.”
(c) The Convertible Note First Priority Representative agrees hereby acknowledges that, to the extent that it holds, or a third party holds on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over, or has a notation of its lien on any certificate of title with respect to, Common Collateral pursuant to the First Priority Security Documents, such possession, control or notation of title is also for the benefit of and on behalf of, and the Convertible Note First Priority Representative or such third party holds such possession, control or the benefit of such notation of title as bailee and agent for, the Second Priority Representative and the other Second Priority Secured Parties and/or solely to the Convertible Note Representative extent required to create a Junior Lien on Pension Priority perfect their security interest in such Common Collateral (such bailment and agency for perfection being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the Uniform Commercial Code). Nothing in the preceding sentence shall be in form reasonably satisfactory construed to impose any duty on the Bank Group First Priority Representative (or any third party acting on its behalf) with respect to such Common Collateral or provide the Second Priority Representative or any Pension Fund other Second Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in this Agreement and the Second Priority Security Documents, provided that subsequent to the occurrence of the First Priority Obligations Payment Date, the First Priority Representative shall (i) deliver to the Second Priority Representative, at the Borrower’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Second Priority Documents (and to the extent not so required, such delivery shall be made to the Borrower) or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs, and provided, further, that the provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Priority Secured Parties and the Second Priority Secured Parties and shall not impose on the First Priority Secured Parties any obligations in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to disposition of any Pension Priority Common Collateral) and shall contain the following notation Collateral (or such other notation as is reasonably acceptable to the Bank Group Representative any proceeds thereof) that would conflict with prior perfected Liens or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(d) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into claims thereon in favor of or for the benefit of the Convertible Note any other Person that is not a Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timeParty.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Each Second Lien Priority Representative on behalf of itself and the other Second Lien Priority Secured Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded on behalf of such Second Lien Priority Representative shall be in form satisfactory to the Controlling First Lien Priority Representative; provided, that, such Second Lien Priority Representative shall not be responsible for the filing, form, content or renewal of such UCC financing statements, patent, trademark or copyright filings or other filings or recordings.
(b) Each Second Lien Priority Representative agrees on behalf of itself and the other Pension Fund Second Lien Priority Secured Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter hereafter filed against real property in favor of or for the benefit of such Second Lien Priority Representative (or its agent) and the Pension Fund other Second Lien Priority Secured Parties and/or the Pension Fund Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group Controlling First Lien Priority Representative (provided, that such Second Lien Priority Representative shall not be responsible for the filing, form, content or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurredrenewal of such mortgage) and shall contain the following notation (or such other notation as is equivalent language reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Controlling First Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Priority Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trusteethe First Lien Priority Representatives, and its their successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22June 16, 2011 2020 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Initial First Lien Priority Representative, and YRC Worldwide Inc.The Bank of New York Mellon Trust Company, N.A., as Initial Second Lien Priority Representative, Realogy Group LLC, as the Borrower, and the other parties Loan Parties referred to therein, as amended, restated, supplemented or otherwise modified amended from time to time.”
(c) The Convertible Note Each First Lien Priority Representative agrees hereby acknowledges that, to the extent that it holds, or a third party holds on behalf its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the First Lien Priority Security Documents, such possession or control is also for the benefit of, and such First Lien Priority Representative or such third party holds such possession or control as bailee and agent for, the Second Lien Priority Representatives and the other Second Lien Priority Secured Parties solely to the extent required to perfect their security interest in such Common Collateral (such bailment and agency for perfection being intended, among other things, to satisfy the requirements of Sections 8-301(a)(2) and 9-313(c) of the Convertible Note Uniform Commercial Code). Nothing in the preceding sentences shall be construed to impose any duty on such First Lien Priority Representative (or any third party acting on its behalf) with respect to such Common Collateral or provide the Second Lien Priority Representatives or any other Second Lien Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in this Agreement and the Second Lien Priority Security Documents, provided that subsequent to the occurrence of the First Lien Priority Obligations Payment Date, each First Lien Priority Representative shall (i) deliver to the Controlling Second Lien Priority Representative, at the Borrower’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Second Lien Priority Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs, and provided, further, that the provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Lien Priority Secured Parties and the Second Lien Priority Secured Parties and shall not impose on the First Lien Priority Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that all Mortgages now would conflict with prior perfected Liens or thereafter filed against real property any claims thereon in favor of or for the benefit of the Convertible Note any other Person that is not a Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Pension Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative (with respect to any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timeParty.”
(d) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Samples: First Lien/Second Lien Intercreditor Agreement (Realogy Holdings Corp.)
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Second Priority Representative on behalf of itself and the other Second Priority Secured Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Second Priority Representative shall be in form satisfactory to the First Priority Representative.
(b) The Second Priority Representative agrees on behalf of itself and the other Pension Fund Second Priority Secured Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter filed against real property in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Second Priority Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group First Priority Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trustee, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(c) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Pension Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative (with respect to any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National AssociationN.A., as Collateral Agent or as Administrative Agent (as applicable)Agent, and its successors and assigns1 assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 2228, 2011 2014 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL RepresentativeAdministrative Agent for the First Priority Secured Parties referred to therein, and YRC Worldwide Inc.Cortland Capital Market Services LLC, as Administrative Agent for the Second Priority Secured Parties referred to therein, and the other parties Loan Parties referred to therein, as amended, restated, supplemented or otherwise modified amended from time to time.”
(dc) The Convertible Note First Priority Representative agrees hereby acknowledges that, to the extent that it holds, or a third party holds on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into in favor its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the First Priority Security Documents, such possession or control is also for the benefit of the Convertible Note Second Priority Representative and the other Second Priority Secured Parties and/or solely to the Convertible Note extent required to perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty on the First Priority Representative (or any third party acting on its behalf) with respect to create a Junior Lien on Bank Group Priority such Common Collateral shall be or provide the Second Priority Representative or any other Second Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in form reasonably satisfactory this Agreement and the Second Priority Security Documents, provided that subsequent to the Bank Group occurrence of the First Priority Obligations Payment Date, the First Priority Representative and shall contain the following notation (or such other notation as is reasonably acceptable i) deliver to the Bank Group Second Priority Representative): “The lien created by this [agreement][mortgage] on , at the property described herein is junior Borrower’s sole cost and subordinate expense, the Common Collateral in its possession or control together with any necessary endorsements to the lien on extent required by the Second Priority Documents or (ii) direct and deliver such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, Common Collateral as Collateral Agent or as Administrative Agent (as applicable)a court of competent jurisdiction otherwise directs, and its successors and assigns in such propertyprovided, in accordance with further, that the provisions of this Agreement are intended solely to govern the Amended and Restated Intercreditor Agreement dated respective Lien priorities as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for between the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., First Priority Secured Parties and the Second Priority Secured Parties and shall not impose on the First Priority Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timePerson that is not a Secured Party.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Second Priority Representative on behalf of itself and the other Second Priority Secured Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Second Priority Representative shall be in form satisfactory to the First Priority Representative. (b) The Second Priority Representative agrees on behalf of itself and the other Pension Fund Second Priority Secured Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter filed against real property in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Second Priority Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group First Priority Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trustee, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(c) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Pension Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative (with respect to any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National AssociationN.A., as Collateral Agent or as Administrative Agent (as applicable)Agent, and its successors and assigns1 assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22October ___, 2011 2009 among JPMorgan Chase Bank, National AssociationN.A., as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc.Collateral Agent, and the other parties Loan Parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(d) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified amended from time to time.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: (c) The First Priority Representative hereby acknowledges that, to the extent that it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the First Priority Security Documents, such possession or control is also for the benefit of the Second Priority Representative and the lien other Second Priority Secured Parties solely to the extent required to perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty on the First Priority Representative (or any third party acting on its behalf) with respect to such property created Common Collateral or provide the Second Priority Representative or any other Second Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in this Agreement and the Second Priority Security Documents, provided that subsequent to the occurrence of the First Priority Obligations Payment Date, the First Priority Representative shall promptly upon the request of the Second Priority Representative (i) deliver to the Second Priority Representative, at the Borrower’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by any mortgage, deed the Second Priority Documents or (ii) direct and deliver such Common Collateral as a court of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agentcompetent jurisdiction otherwise directs, and its successors provided, further, that the provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Priority Secured Parties and assignsthe Second Priority Secured Parties and shall not impose on the First Priority Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party. Further, in each case,subsequent to the occurrence of the First Priority Obligations Payment Date and upon the request of the Second Priority Representative, the First Priority Representative shall promptly deliver notices of the occurrence of the First Priority Obligations Payment Date to all third party lien holders entitled to receive such notice pursuant to the terms of any applicable Third Party Intecreditor Agreement.
Appears in 1 contract
Samples: Intercreditor Agreement
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Representative Term Loan Agent on behalf of itself and the other Term Loan Secured Parties agrees that, prior to the ABL Obligations Payment Date, UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Term Loan Agent shall be in form reasonably satisfactory to the ABL Agent.
(b) The ABL Agent on behalf of itself and the other ABL Secured Parties agrees that, prior to the Term Loan Obligations Payment Date, UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the ABL Agent shall be in form reasonably satisfactory to the Term Loan Agent.
(c) The ABL Agent agrees on behalf of itself and the other Pension Fund ABL Secured Parties that that, prior to the Term Loan Obligations Payment Date, all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter hereafter filed against real property in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Representative to create a Junior Lien on Pension Fund Collateral ABL Agent shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien Term Loan Agent and shall contain substantially the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust CompanyMorgan Stanley & Co. Incorporated, as Collateral TrusteeAgent, and its successors and assigns, assigns in such property, property in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22December 17, 2011 2010 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL RepresentativeAgent, Morgan Stanley & Co. Incorporated, as Term Loan Agent and YRC Worldwide Inc., CDW LLC and certain of its subsidiaries”.
(d) Each of the ABL Agent and the other parties referred Term Loan Agent hereby acknowledges that, to thereinthe extent that it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the ABL Security Documents or the Term Loan Security Documents, as amendedapplicable, restated, supplemented such possession or otherwise modified from time to time.”
(c) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor of or control is also for the benefit of the Convertible Note Term Loan Agent and the other Term Loan Secured Parties and/or or the Convertible Note Representative to create a Junior Lien on Pension Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative (with respect to any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) ABL Agent and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative or the Pension Fund RepresentativeABL Secured Parties, as applicable, solely to the extent required to perfect their security interest in such Common Collateral. Nothing in the preceding sentence shall be construed to impose any duty on the ABL Agent or the Term Loan Agent (or any third party acting on either such Person’s behalf) with respect to such Common Collateral or provide the Term Loan Agent or any other Term Loan Secured Party or the ABL Agent or any other ABL Secured Party, as applicable, with any rights with respect to such Common Collateral beyond those specified in this Agreement, the ABL Security Documents and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate Term Loan Security Documents; provided that (i) subsequent to the lien on such property created by any mortgage, deed occurrence of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent the ABL Obligations Payment Date (as applicableif the Term Loan Obligations Payment Date has not occurred), the ABL Agent shall (A) deliver to the Term Loan Agent, at the Borrower’s sole cost and expense, the Common Collateral in its successors possession or control together with any necessary endorsements to the extent required by the Term Loan Documents or (B) direct and assigns1 deliver such Common Collateral as a court of competent jurisdiction otherwise directs, and (ii) subsequent to the occurrence of the Term Loan Obligations Payment Date (if the ABL Obligations Payment Date has not occurred), the Term Loan Agent shall (A) deliver to the ABL Agent, at the Borrower’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the ABL Documents or (B) direct and deliver such propertyCommon Collateral as a court of competent jurisdiction otherwise directs, in accordance with and provided, further, that the provisions of this Agreement are intended solely to govern the Amended and Restated Intercreditor Agreement dated respective Lien priorities as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for between the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., Secured Parties and the other parties referred to therein, as amended, restated, supplemented Term Loan Secured Parties and shall not impose on the ABL Secured Parties or otherwise modified from time to time.”
(d) The Convertible Note Representative agrees on behalf the Term Loan Secured Parties any obligations in respect of the Convertible Note Secured Parties disposition of any Common Collateral (or any proceeds thereof) that all Convertible Note Security Documents entered into would conflict with prior perfected Liens or any claims thereon in favor of or for the benefit of the Convertible Note any other Person that is not a Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timeParty.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Representative agrees Revolving Lender and each Revolving Credit Secured Party agrees, on the one hand, and the Term Loan Administrative Agent agrees, on behalf of itself and the other Pension Fund Term Loan Secured Parties that all Mortgages now or thereafter filed against real property in favor of or for the benefit of the Pension Fund Secured Parties and/or the Pension Fund Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached Parties, with respect to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to Term Loan Security Documents, on the Bank Group Representative (or other hand, that each such Security Document granting any Lien in the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall Collateral will contain the following notation legend (or such other notation as a legend substantially similar thereto): “Reference is reasonably acceptable made to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgageIntercreditor Agreement, deed dated as of trust or similar instrument now or hereafter granted to JPMorgan Chase BankMay 2, National Association2014, among BANK OF AMERICA, N.A., as Collateral Agent or the Revolving Lender (as defined therein), XXXXXXX XXXXX BANK USA, as the Term Loan Administrative Agent (as applicabledefined therein), VERTEX ENERGY, INC., a Nevada corporation (“Holdings”), VERTEX ENERGY OPERATING, LLC, a Texas limited liability company, and its successors the subsidiaries of Holdings named therein (as amended, modified, restated, amended and assigns and restated or supplemented from time to time, the “Intercreditor Agreement”). Each Person that benefits from the security hereunder, by accepting the benefits of the security provided hereby, (i) consents (or is deemed to consent), to the subordination of Liens provided for in the Intercreditor Agreement, (ii) the lien on such property created by any mortgage, deed of trust agrees (or similar instrument now or hereafter granted is deemed to U.S. Bank National Association, as Collateral Trusteeagree) that it will be bound by, and its successors and assignswill take no actions contrary to, in each case in such property, in accordance with the provisions of the Amended Intercreditor Agreement, (iii) authorizes (or is deemed to authorize) the [Revolving Lender] [Term Loan Administrative Agent] on behalf of such Person to enter into, and Restated perform under, the Intercreditor Agreement dated as and (iv) acknowledges (or is deemed to acknowledge) that a copy of July 22the Intercreditor Agreement was delivered, 2011 among JPMorgan Chase Bankor made available, National Associationto such Person. Notwithstanding any other provision contained herein, as Administrative Agentthis Agreement, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., the Liens created hereby and the other parties referred rights, remedies, duties and obligations provided for herein are subject in all respects to thereinthe provisions of the Intercreditor Agreement. In the event of any conflict or inconsistency between the provisions of this Agreement and the Intercreditor Agreement, as amended, restated, supplemented or otherwise modified from time to timethe provisions of the Intercreditor Agreement shall control.”
(b) The Bank Group Representative agrees on behalf Each of itself the Revolving Lender and the other Bank Group Secured Parties Term Loan Administrative Agent hereby acknowledges that, to the extent that all Mortgages now it holds, or thereafter filed in favor a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral (including the Omega/Bango Financing Documents) pursuant to the Revolving Credit Security Documents or the Term Loan Security Documents, as applicable, whether as bailee for perfection or otherwise, such possession or control is also for the benefit of the Bank Group Representative against Pension Fund Collateral Term Loan Administrative Agent and the other Term Loan Secured Parties or the Revolving Lender and the other Revolving Credit Secured Parties, as applicable, solely to the extent required to perfect their Lien in respect of which such Common Collateral. Nothing in the Bank Group Representative shall have a Junior Lien preceding sentence shall be amended construed to impose any duty on the Revolving Lender or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation Term Loan Administrative Agent (or any third party acting on either such other notation as is reasonably acceptable Person’s behalf) with respect to such Common Collateral or provide the Bank Group Representative and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trustee, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Term Loan Administrative Agent, Wilmington Trust Companyany other Term Loan Secured Party, the Revolving Lender or any other Revolving Credit Secured Party, as Pension Fund Representativeapplicable, U.S. Bank National Associationwith any rights with respect to such Common Collateral beyond those specified in this Agreement, the Revolving Credit Security Documents and the Term Loan Security Documents, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”applicable; provided that:
(c) The Convertible Note Representative agrees on behalf subsequent to the occurrence of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor of or for Revolving Credit Obligations Payment Date (so long as the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Pension Priority Common Collateral Term Loan Obligations Payment Date shall be in form reasonably satisfactory not have occurred) and subject to the Bank Group Representative terms of any applicable Account Agreement, the Revolving Lender shall (with respect to any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lieni) and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) and shall contain the following notation (or such other notation as is reasonably acceptable deliver to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Term Loan Administrative Agent, Wilmington Trust Companyat the Loan Parties’ sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Term Loan Documents or (ii) direct and deliver such Common Collateral as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes a court of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or competent jurisdiction otherwise modified from time to time.”directs; and
(d) The Convertible Note Representative agrees on behalf subsequent to the occurrence of the Convertible Note Term Loan Obligations Payment Date (so long as the Revolving Credit Obligations Payment Date shall not have occurred), the Term Loan Administrative Agent shall (i) deliver to the Revolving Lender, at the Loan Parties’ sole cost and expense, the Common Collateral in its possession or control (including, but not limited to certificates of title, certificates evidencing Capital Stock, and promissory notes), together with any necessary endorsements to the extent required by the Revolving Credit Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the Revolving Credit Secured Parties and the Term Loan Secured Parties and (i) shall not impose on the Revolving Credit Secured Parties or the Term Loan Secured Parties any obligations in respect of the disposition of any Common Collateral (or any Proceeds thereof) that all Convertible Note Security Documents entered into would conflict with prior perfected Liens or any claims thereon in favor of or for the benefit any other Person that is not a Secured Party, and (ii) shall not constitute a subordination of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory Term Loan Obligations to the Bank Group Representative and shall contain Revolving Credit Obligations or the following notation (or such other notation as is reasonably acceptable Revolving Credit Obligations to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timeTerm Loan Obligations.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
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Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Second Priority Representative on behalf of itself and the other Second Priority Secured Parties agrees that UCC-1 financing statements, patent, trademark or copyright filings or other filings or recordings filed or recorded by or on behalf of the Second Priority Representative with respect to the Common Collateral shall be in form satisfactory to the First Priority Representative.
(b) The Second Priority Representative agrees on behalf of itself and the other Pension Fund Second Priority Secured Parties that all Mortgages mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter hereafter filed against real property Real Property that constitutes Common Collateral in favor of or for the benefit of the Pension Fund Second Priority Representative and the other Second Priority Secured Parties and/or the Pension Fund Representative to create a Junior Lien on Pension Fund Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group First Priority Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(b) The Bank Group Representative agrees on behalf of itself and the other Bank Group Secured Parties that all Mortgages now or thereafter filed in favor of or for the benefit of the Bank Group Representative against Pension Fund Collateral in respect of which the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Collateral Trusteethe First Priority Representative, and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22December __, 2011 2010 among JPMorgan Chase Xxxxxx Xxxxxxx Senior Funding Inc., as Collateral Agent for the First Priority Secured Parties, U.S. Bank, National Association, as Administrative AgentCollateral Agent for the Second Priority Secured Parties, Wilmington Trust CompanySwift Transportation Co., LLC, a Delaware limited liability company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc.Borrower, and the other parties Loan Parties referred to therein, as amended, restated, modified or supplemented or otherwise modified from time to time.”
(c) The Convertible Note First Priority Representative agrees hereby acknowledges that, to the extent that it holds, or a third party holds on behalf of the Convertible Note Secured Parties that all Mortgages now or thereafter filed against real property in favor its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over, or has a notation of its lien on any certificate of title with respect to, Common Collateral pursuant to the First Priority Security Documents, such possession, control or notation of title is also for the benefit of and on behalf of, and the Convertible Note First Priority Representative or such third party holds such possession, control or the benefit of such notation of title as bailee and agent for, the Second Priority Representative and the other Second Priority Secured Parties and/or solely to the Convertible Note Representative extent required to create a Junior Lien on Pension Priority perfect their security interest in such Common Collateral (such bailment and agency for perfection being intended, among other things, to satisfy the requirements of Sections 8-106(d)(3), 8-301(a)(2) and 9-313(c) of the Uniform Commercial Code). Nothing in the preceding sentence shall be in form reasonably satisfactory construed to impose any duty on the Bank Group First Priority Representative (or any third party acting on its behalf) with respect to such Common Collateral or provide the Second Priority Representative or any Pension Fund other Second Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in this Agreement and the Second Priority Security Documents, provided that subsequent to the occurrence of the First Priority Obligations Payment Date, the First Priority Representative shall (i) deliver to the Second Priority Representative, at the Borrower’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements to the extent required by the Second Priority Documents (and to the extent not so required, such delivery shall be made to the Borrower) or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs, and provided, further, that the provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Priority Secured Parties and the Second Priority Secured Parties and shall not impose on the First Priority Secured Parties any obligations in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to disposition of any Pension Priority Common Collateral) and shall contain the following notation Collateral (or such other notation as is reasonably acceptable to the Bank Group Representative any proceeds thereof) that would conflict with prior perfected Liens or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.”
(d) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into claims thereon in favor of or for the benefit of the Convertible Note any other Person that is not a Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to timeParty.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
Samples: Intercreditor Agreement (Interstate Equipment Leasing, LLC)
Agreements Regarding Actions to Perfect Liens. (a) The Pension Fund Representative agrees Second Priority Representative, on behalf of itself and the other Pension Fund Second Priority Secured Parties Parties, agrees that all Mortgages now each patent, trademark or thereafter copyright filing or other filings or recordings (other than Uniform Commercial Code financing statements) filed against real property in favor of or for the benefit recorded by or on behalf of the Pension Fund Secured Parties and/or the Pension Fund Second Priority Representative to create a Junior Lien on Pension Fund in respect of applicable Common Collateral shall be substantially in form attached to the Existing Pension Fund Agreement as Exhibit B-2 thereto or shall otherwise be reasonably satisfactory to the Bank Group Representative (or the Convertible Note Representative solely shall, to the extent the Bank Group Obligations Payment Date has occurred) and shall reasonably practicable, contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative (or the Convertible Note Representative solely to the extent the Bank Group Obligations Payment Date has occurred) and the Pension Fund Representative): notation: “The lien created by this mortgage hereby on the property described herein is junior and subordinate to (i) the lien on such property created by any mortgageagreement, deed of trust filing or similar instrument recording now or hereafter granted to JPMorgan Chase Bank, National AssociationDeutsche Bank Trust Company Americas, as Collateral Agent or as Administrative Agent (as applicableunder the First Priority Documents), and its successors and assigns and (ii) the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to U.S. Bank National Association, as Collateral Trustee, and its successors and assigns, in each case in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22January 30, 2011 2012, among JPMorgan Chase Bank, National AssociationDEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative AgentFirst Priority Representative, Wilmington Trust CompanyWILMINGTON TRUST, NATIONAL ASSOCIATION, as Pension Fund Second Priority Representative, U.S. Bank National AssociationXXX ENTERPRISES, INCORPORATED, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc.Borrower, and the other parties Loan Parties referred to therein, as amended, restated, supplemented or otherwise modified amended from time to time.”
(b) The Bank Group Representative agrees Second Priority Representative, on behalf of itself and the other Bank Group Second Priority Secured Parties Parties, agrees that all Mortgages mortgages, deeds of trust, deeds and similar instruments now or thereafter hereafter filed against real property comprising Common Collateral in favor of or for the benefit of the Bank Group Second Priority Representative against Pension Fund Collateral in respect of which and the Bank Group Representative shall have a Junior Lien shall be amended or otherwise modified pursuant to documentation in form reasonably satisfactory to the Pension Fund Representative to reflect that the Lien created thereby is a Junior Lien and other Second Priority Secured Parties shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative and the Pension Fund Representative): notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust CompanyDEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral TrusteeAgent (under the First Priority Documents), and its successors and assigns, in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22January 30, 2011 2012, among JPMorgan Chase Bank, National AssociationDEUTSCHE BANK TRUST COMPANY AMERICAS, as Administrative AgentFirst Priority Representative, Wilmington Trust CompanyWILMINGTON TRUST, NATIONAL ASSOCIATION, as Pension Fund Second Priority Representative, U.S. Bank National AssociationXXX ENTERPRISES, INCORPORATED, as Convertible Note Representative, solely for purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc.Borrower, and the other parties Loan Parties referred to therein, as amended, restated, supplemented or otherwise modified amended from time to time.”
(c) The Convertible Note First Priority Representative hereby acknowledges and agrees that, to the extent that it holds, or a third party holds on behalf its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code) over Common Collateral pursuant to the First Priority Security Documents, such possession or control is also for the benefit of, and the First Priority Representative or such third party holds such possession or control as bailee and agent for, the Second Priority Representative and the other Second Priority Secured Parties solely to the extent required to perfect their security interest in such Common Collateral (such bailment and agency for perfection being intended, among other things, to satisfy the requirements of sections 8-301(a)(2) and 9-313(c) of the Convertible Note Uniform Commercial Code). Nothing in the preceding sentence shall be construed to impose any duty on the First Priority Representative (or any third party acting on its behalf) with respect to such Common Collateral or provide the Second Priority Representative or any other Second Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in this Agreement and the Second Priority Security Documents, provided that as soon as practicable after the occurrence of the events described in clauses (a), (b) and (c) of the definition of the First Priority Obligations Payment Date, the First Priority Representative shall (i) deliver, at the Borrower’s sole cost and expense, the Common Collateral in its possession or control together with any necessary endorsements (x) first, to the Second Priority Representative to the extent any Second Priority Obligations remain outstanding and (y) second, to the Borrower to the extent no First Priority Obligations or Second Priority Obligations remain outstanding, or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs, and provided, further, that the provisions of this Agreement are intended solely to govern the respective Lien priorities as between the First Priority Secured Parties and the Second Priority Secured Parties and shall not impose on the First Priority Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that all Mortgages now would conflict with prior perfected Liens or thereafter filed against real property any claims thereon in favor of any other Person that is not a Secured Party.
(d) To the extent that any deposit account or securities account of any Loan Party is subject to a control agreement in favor of the First Priority Representative, the First Priority Representative will act as bailee and agent for the Second Priority Representative solely to the extent required to perfect the Liens of the Second Priority Secured Parties in such deposit accounts and securities accounts and the cash and other assets therein. Nothing in the preceding sentence shall be construed to impose any duty on the First Priority Representative (or any third party acting on its behalf) with respect to such Common Collateral or provide the Second Priority Representative or any other Second Priority Secured Party with any rights with respect to such Common Collateral beyond those specified in this Agreement and the Second Priority Security Documents. Unless the Second Priority Liens on such First Priority Collateral shall have been or concurrently are released, after the First Priority Obligations Payment Date, the First Priority Representative shall cooperate with the Loan Parties and the Second Priority Representative (at the expense of the Loan Parties) in permitting control of any deposit accounts and securities accounts to be transferred to the Second Priority Representative (or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative other arrangements with respect to create a Junior Lien on Pension Priority Common Collateral shall be in form each such deposit account and securities account reasonably satisfactory to the Bank Group Second Priority Representative (with respect to any Pension Fund Collateral in respect of which the Bank Group Representative shall have a Senior Lien or a Junior Second Lien) and the Pension Fund Representative (with respect to any Pension Priority Common Collateral) and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative or the Pension Fund Representative, as applicable, and the Convertible Note Representative): “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns1 in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the Purposes of Sections 3.1(c) and 11.3 thereof, JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred Second Priority Documents to therein, as amended, restated, supplemented or otherwise modified from time to timebe made).”
(d) The Convertible Note Representative agrees on behalf of the Convertible Note Secured Parties that all Convertible Note Security Documents entered into in favor of or for the benefit of the Convertible Note Secured Parties and/or the Convertible Note Representative to create a Junior Lien on Bank Group Priority Common Collateral shall be in form reasonably satisfactory to the Bank Group Representative and shall contain the following notation (or such other notation as is reasonably acceptable to the Bank Group Representative): “The lien created by this [agreement][mortgage] on the property described herein is junior and subordinate to the lien on such property created by any security agreement or similar instrument now or hereafter granted to JPMorgan Chase Bank, National Association, as Collateral Agent or as Administrative Agent (as applicable), and its successors and assigns in such property, in accordance with the provisions of the Amended and Restated Intercreditor Agreement dated as of July 22, 2011 among JPMorgan Chase Bank, National Association, as Administrative Agent, Wilmington Trust Company, as Pension Fund Representative, U.S. Bank National Association, as Convertible Note Representative, solely for the purposes of Section 3.1(c) and 11.3 hereof JPMorgan Chase Bank, N.A., as ABL Representative, and YRC Worldwide Inc., and the other parties referred to therein, as amended, restated, supplemented or otherwise modified from time to time.” 1 INSERT THE FOLLOWING TO THE EXTENT THE PENSION FUND REPRESENTATIVE SHALL HAVE A SENIOR LIEN: and the lien on such property created by any mortgage, deed of trust or similar instrument now or hereafter granted to Wilmington Trust Company, as Agent, and its successors and assigns, in each case,
Appears in 1 contract
