Hedging Obligations and Bank Product Obligations. (a) The Collateral Agent will, as collateral agent hereunder, also perform its undertakings set forth in Section 3.1(a) with respect to any Hedging Obligations under a Hedge Agreement or Bank Product Obligations under an agreement giving rise to Bank Product Obligations that is incurred after the date hereof if: (1) such Hedge Agreement or agreement giving rise to Bank Product Obligations is identified in accordance with the procedures set forth in Section 3.9(b); and (2) the Hedge Provider or Bank Product Provider, as applicable, identified pursuant to Section 3.9(b) signs an Intercreditor Joinder and delivers the same to the Collateral Agent (it being understood and agreed that only one Intercreditor Joinder will be required for each master agreement and that separate Intercreditor Joinders will not be required for each Swap Transaction thereunder). (b) Each time the Borrower enters into any Interest Rate Agreement or Currency Agreement that the Borrower desires to designate as a Hedge Agreement or any agreement giving rise to Bank Product Obligations, the Borrower shall deliver to the Collateral Agent an Additional Secured Obligations Designation (it being understood and agreed that only one Additional Secured Obligations Designation will be required for each master agreement and that separate Additional Secured Obligations Designations will not be required for each Swap Transaction thereunder) that: (1) states that the Borrower or another Grantor intends to incur such Hedging Obligations or Bank Product Obligations, as applicable, which will be (as specified in such Additional Secured Obligation Designation) First Lien Obligations, and that no Secured Debt Document prohibits the incurrence thereof or prohibits such Hedging Obligations or Bank Product Obligations to be secured by a First Lien equally and ratably with all previously existing and future First Lien Obligations; (2) specifies the name and address of the relevant Hedge Provider or Bank Product Provider and identifies the Hedge Agreement or agreement giving rise to Bank Product Obligations, as applicable; (3) states that the Borrower and each other Grantor has duly authorized, executed (if applicable) and recorded (or caused to be recorded) in each appropriate governmental office all relevant filings and recordations to ensure that such Hedging Obligations or Bank Product Obligations are secured by the Collateral in accordance with the Security Documents; (4) attaches as Exhibit 1 to such Additional Secured Obligation Designation a Reaffirmation Agreement in substantially the form attached as Exhibit 1 to Exhibit A of this Agreement, which Reaffirmation Agreement has been duly executed by the Borrower and each other Grantor and Guarantor; and (5) states that the Borrower has caused a copy of the Additional Secured Obligation Designation and the related Intercreditor Joinder to be delivered to each then existing Secured Debt Representative. Although the Borrower shall be required to deliver a copy of each Additional Secured Obligation Designation and each Intercreditor Joinder to each then existing Secured Debt Representative, the failure to so deliver a copy of the Additional Secured Obligation Designation and/or Intercreditor Joinder to any then existing Secured Debt Representative shall not affect the status of such obligations as Secured Obligations if the other requirements of this Section 3.9 are complied with. Notwithstanding the foregoing, nothing in this Agreement will be construed to allow the Borrower or any other Grantor to incur additional Obligations or Liens or enter into any Swap Transactions if prohibited by the terms of any Secured Debt Document. (c) With respect to any Hedging Obligations or Bank Product Obligations incurred after the date hereof, the Borrower and each of the other Grantors agrees to take such actions (if any) as may from time to time reasonably be requested by the Collateral Agent, the applicable Hedge Provider or Bank Product Provider, any First Lien Representative or any Act of Required Secured Parties, and enter into such amendments, modifications and/or supplements to the then existing Guarantees and Security Documents (or execute and deliver such additional Security Documents) as may from time to time be reasonably requested by such Persons (including as contemplated by clause (d) below), to ensure that the Hedging Obligations or Bank Product Obligations incurred after the date hereof are secured by, and entitled to the benefits of, the relevant Security Documents, and each Secured Party (by its acceptance of the benefits hereof) hereby agrees to, and authorizes the Collateral Agent to enter into, any such amendments, modifications and/or supplements (and additional Security Documents). The Borrower and each Grantor hereby further agree that if there are any recording, filing or other similar fees or taxes payable in connection with any of the actions to be taken pursuant to this Section 3.9(c) or Section 3.9(d) all such amounts shall be paid by, and shall be for the account of, the Borrower and the respective Grantors, on a joint and several basis. (d) Without limitation of the foregoing, the Borrower and each of the other Grantors agrees to take the following actions with respect to any real property Collateral with respect to all Hedge Agreements and Swap Transactions thereunder and all agreements giving rise to Bank Product Obligations, in each case hereafter entered into in the event that any Mortgage with respect to any Mortgaged Property would not be valid and enforceable and/or the priority of the liens evidenced by, or the continuing validity, enforceability and/or priority of the Lien of such Mortgages as security for, the First Lien Obligations would be changed by reason of such Hedge Agreement or Swap Transaction or agreement giving rise to Bank Product Obligations: (1) the Borrower or the applicable Grantor shall enter into, and deliver to the Collateral Agent, a mortgage modification or new mortgage or deed of trust with regard to each real property owned by the Borrower or the applicable Grantor subject to a mortgage or deed of trust as security for any Secured Obligations (each such mortgage or deed of trust a “Hedge Mortgage” and each such property a “Hedge Mortgaged Property” which, if necessary to continue the validity or enforceability and/or to maintain the same priority of the existing Mortgage(s) for the other First Lien Obligations with respect to such Hedge Mortgaged Property, may be a subordinate lien mortgage with respect to such Hedge Agreement and Swap Transactions and agreement giving rise to Bank Product Obligations, with such changes as may be required to account for local law matters) at the time of such incurrence, in proper form for recording in all applicable jurisdictions, in a form and substance reasonably satisfactory to the Collateral Agent and the Controlling Representative along with payment of all filing and recording taxes, documentary stamp taxes, and similar taxes, charges, and fees, if any, necessary for filing or recording in the recording office of each jurisdiction where such real property to be encumbered thereby is situated (such Mortgage or mortgage modification, the “Hedge Modification”); (2) the applicable Grantor shall deliver a favorable opinion of appropriate local counsel, addressed to the Controlling Representative, the Collateral Agent and the other Secured Parties, in form and substance reasonably satisfactory to the Controlling Representative; (3) the applicable Grantor shall have caused a title company reasonably acceptable to the Controlling Representative to have delivered to the Controlling Representative and the Collateral Agent a title insurance policy (or, as applicable, an endorsement to each title insurance policy previously delivered to the Collateral Agent with respect to the Mortgage or Mortgages for the other First Lien Obligations), date down(s) or other evidence reasonably satisfactory to the Controlling Representative and/or the Collateral Agent (each such delivery, a “Hedge Title Datedown Product”) in each case (i) insuring that the validity, enforceability and priority of the liens with respect to, or the continuing validity, enforceability and priority of the Lien of the mortgages as security for, the Hedging Obligations, the Bank Product Obligations and any other First Lien Obligations has not changed and, if a new Mortgage is entered into, that the Lien of such new Mortgage securing the Hedging Obligations, the Bank Product Obligations and any other First Lien Obligations then being incurred shall be enforceable and have the same priority as any existing Mortgage securing then existing Hedging Obligations, Bank Product Obligations and any other First Lien Obligations, (ii) confirming and/or insuring that since the later of the original date of such title insurance product and the date of the Hedge Title Datedown Product delivered most recently prior to (and not in connection with) such additional hedging obligations there has been no change in the condition of title and (iii) there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the applicable Mortgage(s), in each case other than with respect to Liens permitted by each Secured Debt Document (without adding any additional exclusions or exceptions to coverage); and (4) the applicable Grantor shall, upon the request of the Controlling Representative and/or the Collateral Agent, deliver to the approved title company, the Collateral Agent, the Controlling Representative and/or all other relevant third parties all other items reasonably necessary to (i) record a Hedge Modification, (ii) issue a Hedge Title Datedown Product and (iii) create, perfect or preserve the validity, enforceability and priority of the Lien of the mortgage(s) as set forth above and contemplated hereby and by the Secured Obligations Documents. In the event that the applicable Grantor is unable to satisfy the obligations set forth in clause (3) above with respect to the obligations in sub-clause (i) thereof and clause (4) above with respect to the obligations in sub-clauses (ii) and (iii) thereof, then, and only to the extent that the applicable Grantor is unable to so comply with such sub-clauses, the applicable Grantor shall be required to (w) deliver a new Hedge Mortgage (with such changes as may be required to account for local law matters) with respect to such Hedge Mortgaged Property (which, if necessary to continue the validity or enforceability and/or to maintain the same priority of the existing Mortgage with respect to each such Hedge Mortgaged Property, may be a subordinate lien mortgage with respect to such Hedge Agreement or Swap Transaction or agreement giving rise to Bank Product Obligations (with such changes as may be required to account for local law matters) and shall otherwise comply with the provisions of clause (1) above, (x) comply with the provisions of clause (2) and (y) deliver to the approved title company, the Collateral Agent, the Controlling Representative and/or all other relevant third parties all other items reasonably necessary to record the new Hedge Mortgage.
Appears in 2 contracts
Samples: Intercreditor Agreement (Alion Science & Technology Corp), First Lien Credit and Guaranty Agreement (Alion Science & Technology Corp)
Hedging Obligations and Bank Product Obligations. (a) The Collateral Agent will, as collateral agent hereunder, also perform its undertakings set forth in Section 3.1(a) with respect to any Hedging Obligations under a Hedge Agreement or Bank Product Obligations under an agreement giving rise to Bank Product Obligations that is incurred after the date hereof if:
(1) such Hedge Agreement or agreement giving rise to Bank Product Obligations is identified in accordance with the procedures set forth in Section 3.9(b); and
(2) the Hedge Provider or Bank Product Provider, as applicable, identified pursuant to Section 3.9(b) signs an Intercreditor Joinder and delivers the same to the Collateral Agent (it being understood and agreed that only one Intercreditor Joinder will be required for each master agreement and that separate Intercreditor Joinders will not be required for each Swap Transaction thereunder).
(b) Each time the Borrower a Credit Party enters into (i) any Interest Rate Agreement or Currency Agreement Swap Contract that the Borrower such Credit Party desires to designate as a Cash Flow Collateral Hedge Agreement, (ii) any Swap Transaction under any Cash Flow Collateral Hedge Agreement or (iii) any agreement giving rise to Cash Flow Collateral Bank Product ObligationsObligations that such Credit Party desires to designate as a Cash Flow Collateral Bank Product Agreement, (1) the Borrower designated Secured Debt Representative (as defined in the Collateral Agency Agreement) identified pursuant to this Section 3.9(a) shall have signed a Cash Flow Collateral Agency Joinder and delivered the same to the Cash Flow Collateral Representative and the ABL Agent and (2) the Company shall deliver to the Cash Flow Collateral Representative and the ABL Agent an Additional Secured Cash Flow Collateral Obligations Designation (it being understood and agreed that only one Additional Secured Obligations Designation will be required for each master agreement and that separate Additional Secured Obligations Designations will not be required for each Swap Transaction thereunder) that:
(1) states that the Borrower or another Grantor relevant Credit Party intends to incur such Cash Flow Collateral Hedging Obligations or Bank Product Obligations, as applicable, which will be (as specified in such Additional Secured Obligation Designation) First Lien Obligations, and that no Secured Debt Document prohibits the incurrence thereof or prohibits such Hedging Obligations or Bank Product Obligations to be secured by a First Lien equally and ratably with all previously existing and future First Lien Obligations;
(2) specifies the name and address of the relevant Hedge Provider or Bank Product Provider and identifies the Hedge Agreement or agreement giving rise to Cash Flow Collateral Bank Product Obligations, as applicable;
(3) states that the Borrower and each other Grantor has duly authorized, executed (if applicable) and recorded (or caused to be recorded) in each appropriate governmental office all relevant filings and recordations to ensure that such Hedging Obligations or Bank Product Obligations are secured by the Collateral in accordance with the Security Documents;
(42) attaches as Exhibit 1 to such Additional Secured Cash Flow Collateral Obligation Designation a Reaffirmation Agreement in substantially the form attached as Exhibit 1 to Exhibit A B of this Agreement, which Reaffirmation Agreement has been duly executed by the Borrower Borrowers and each other Grantor and GuarantorCredit Party; and
(53) states that the Borrower has Borrowers have caused a copy of the Additional Secured Cash Flow Collateral Obligation Designation and the related Intercreditor Cash Flow Collateral Agency Joinder to be delivered to each then existing Secured Debt Representativethe Cash Flow Collateral Representative and the ABL Agent. Although the Borrower Credit Parties shall be required to deliver a copy of each Additional Secured Cash Flow Collateral Obligation Designation and each Intercreditor Cash Flow Collateral Agency Joinder to each then existing Secured Debt Representativethe Cash Flow Collateral Representative and the ABL Agent, the failure to so deliver a copy of the Additional Secured Cash Flow Collateral Obligation Designation and/or Intercreditor Cash Flow Collateral Joinder to any then existing Secured Debt the Cash Flow Collateral Representative or the ABL Agent shall not affect the status of such obligations as Secured Cash Flow Collateral Obligations if the other requirements of this Section 3.9 3.9(a) are complied with. Upon satisfaction of the foregoing conditions, the designated Cash Flow Collateral Hedge Agreement or Cash Flow Collateral Bank Product Agreement shall constitute “Cash Flow Collateral Obligations” for all purposes under this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein. Notwithstanding the foregoing, nothing in this Agreement will be construed to allow the Borrower Borrowers or any other Grantor Credit Party to incur additional Obligations or Liens or enter into any Swap Transactions if prohibited by the terms of any Secured Debt Cash Flow Collateral Document or ABL Document.
(b) Each time a Credit Party enters into (i) any Swap Contract that such Credit Party desires to designate as a ABL Hedge Agreement, (ii) any Swap Transaction under any ABL Hedge Agreement or (iii) any agreement giving rise to ABL Bank Product Obligations that such Credit Party desires to designate as a ABL Bank Product Agreement, the Company shall deliver to the Cash Collateral Representative and the ABL Agent an Additional ABL Obligation Designation that:
(1) states that the relevant Credit Party intends to incur such ABL Hedging Obligations or ABL Bank Product Obligations, as applicable;
(2) attaches as Exhibit 1 to such Additional ABL Obligation Designation a Reaffirmation Agreement in substantially the form attached as Exhibit 1 to Exhibit B of this Agreement, which Reaffirmation Agreement has been duly executed by the Borrowers and each other Credit Party; and
(3) states that the Borrowers have caused a copy of the Additional ABL Obligation Designation to be delivered to the Cash Flow Collateral Representative and the ABL Agent. Although the Credit Parties shall be required to deliver a copy of each Additional ABL Obligation Designation to the Cash Flow Collateral Representative and the ABL Agent, the failure to so deliver a copy of the Additional ABL Obligation Designation to the Cash Flow Collateral Representative or the ABL Agent shall not affect the status of such obligations as ABL Obligations if the other requirements of this Section 3.9(b) are complied with. Upon satisfaction of the foregoing conditions, the designated ABL Hedge Agreement or ABL Bank Product Agreement shall constitute “ABL Obligations” for all purposes under this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein Notwithstanding the foregoing, nothing in this Agreement will be construed to allow the Borrowers or any other Credit Party to incur additional Obligations or Liens or enter into any Swap Transactions if prohibited by the terms of any Cash Flow Collateral Document or ABL Document.
(c) With respect to any Cash Flow Collateral Hedging Obligations or and Cash Flow Collateral Bank Product Obligations incurred after the date hereofObligations, the Borrower and each of the other Grantors party hereto agrees to take such actions (if any) as may from time to time reasonably be requested by the Collateral Agent, the applicable Hedge Provider or Bank Product Provider, any First Lien Representative or any Act of Required Secured Parties, and enter into such amendments, modifications and/or supplements to the then existing Cash Flow Collateral Guarantees and Cash Flow Collateral Security Documents (or execute and deliver such additional Cash Flow Collateral Security Documents) as may from time to time be reasonably requested by such Persons (including as contemplated by clause (d) below)another party hereto, to ensure that the Cash Flow Collateral Hedging Obligations or and Cash Flow Collateral Bank Product Obligations incurred after the date hereof are secured by, and entitled to the benefits of, the relevant Cash Flow Collateral Security Documents, and each Cash Flow Collateral Secured Party (by its acceptance of the benefits hereof) hereby agrees to, and authorizes the Cash Flow Collateral Agent Representative to enter into, any such amendments, modifications and/or supplements (and additional Cash Flow Collateral Security Documents). The Borrower Borrowers and each Grantor Credit Party hereby further agree that if there are any recording, filing or other similar fees or taxes payable in connection with any of the actions to be taken pursuant to this Section 3.9(c) all such amounts shall be paid by, and shall be for the account of, the Borrowers and the respective Credit Parties, on a joint and several basis.
(d) With respect to any ABL Hedging Obligations and ABL Bank Product Obligations, each party hereto agrees to take such actions and enter into such amendments, modifications and/or supplements to the then existing Guarantees and ABL Security Documents (or execute and deliver such additional ABL Security Documents) as may from time to time be reasonably requested by another party hereto, to ensure that the ABL Hedging Obligations and ABL Bank Product Obligations incurred after the date hereof are secured by, and entitled to the benefits of, the relevant ABL Security Documents, and each ABL Secured Party (by its acceptance of the benefits hereof) hereby agrees to, and authorizes the ABL Agent to enter into, any such amendments, modifications and/or supplements (and additional ABL Security Documents). The Borrowers and each Credit Party hereby further agree that if there are any recording, filing or other similar fees or taxes payable in connection with any of the actions to be taken pursuant to this Section 3.9(d) all such amounts shall be paid by, and shall be for the account of, the Borrower Borrowers and the respective GrantorsCredit Parties, on a joint and several basis.
(de) Without limitation The Credit Parties shall have the right, at any time on or after the Discharge of Cash Flow Collateral Obligations has occurred, to enter into any Cash Flow Collateral Hedge Agreement or Cash Flow Collateral Bank Product Agreement evidencing Cash Flow Collateral Obligations which incurrence is not prohibited by the foregoingapplicable ABL Documents and Cash Flow Collateral Documents, and to designate such obligations as Cash Flow Collateral Obligations in accordance with Section 3.9(a). At any time from and after the date of such designation pursuant to Section 3.9(a), the Borrower and each of the other Grantors agrees to take the following actions with respect to any real property obligations under such Cash Flow Collateral with respect to all Hedge Agreements and Swap Transactions thereunder and all agreements giving rise to Agreement or Cash Flow Collateral Bank Product ObligationsAgreement shall automatically and without further action be treated as Cash Flow Collateral Obligations for all purposes of this Agreement, in each case hereafter entered into in the event that any Mortgage with respect to any Mortgaged Property would not be valid and enforceable and/or the priority of the liens evidenced by, or the continuing validity, enforceability and/or priority including for purposes of the Lien priorities and rights in respect of such Mortgages as security forCollateral set forth herein.
(f) The Credit Parties shall have the right, at any time on or after the First Lien Discharge of ABL Obligations would be changed by reason of such has occurred, to enter into any ABL Hedge Agreement or Swap Transaction or agreement giving rise to ABL Bank Product Obligations:
(1) the Borrower or Agreement evidencing ABL Obligations which incurrence is not prohibited by the applicable Grantor shall enter intoCash Flow Collateral Documents and ABL Documents, and deliver to designate such obligations as ABL Obligations in accordance with Section 3.9(b). At any time from and after the Collateral Agentdate of such designation pursuant to Section 3.9(b), a mortgage modification or new mortgage or deed of trust with regard to each real property owned by the Borrower or the applicable Grantor subject to a mortgage or deed of trust as security for any Secured Obligations (each obligations under such mortgage or deed of trust a “Hedge Mortgage” and each such property a “Hedge Mortgaged Property” which, if necessary to continue the validity or enforceability and/or to maintain the same priority of the existing Mortgage(s) for the other First Lien Obligations with respect to such Hedge Mortgaged Property, may be a subordinate lien mortgage with respect to such ABL Hedge Agreement and Swap Transactions and agreement giving rise to or ABL Bank Product ObligationsAgreement shall automatically and without further action be treated as ABL Obligations for all purposes of this Agreement, with such changes as may be required to account including for local law matters) at the time of such incurrence, in proper form for recording in all applicable jurisdictions, in a form and substance reasonably satisfactory to the Collateral Agent and the Controlling Representative along with payment of all filing and recording taxes, documentary stamp taxes, and similar taxes, charges, and fees, if any, necessary for filing or recording in the recording office of each jurisdiction where such real property to be encumbered thereby is situated (such Mortgage or mortgage modification, the “Hedge Modification”);
(2) the applicable Grantor shall deliver a favorable opinion of appropriate local counsel, addressed to the Controlling Representative, the Collateral Agent and the other Secured Parties, in form and substance reasonably satisfactory to the Controlling Representative;
(3) the applicable Grantor shall have caused a title company reasonably acceptable to the Controlling Representative to have delivered to the Controlling Representative and the Collateral Agent a title insurance policy (or, as applicable, an endorsement to each title insurance policy previously delivered to the Collateral Agent with respect to the Mortgage or Mortgages for the other First Lien Obligations), date down(s) or other evidence reasonably satisfactory to the Controlling Representative and/or the Collateral Agent (each such delivery, a “Hedge Title Datedown Product”) in each case (i) insuring that the validity, enforceability and priority of the liens with respect to, or the continuing validity, enforceability and priority purposes of the Lien priorities and rights in respect of the mortgages as security for, the Hedging Obligations, the Bank Product Obligations and any other First Lien Obligations has not changed and, if a new Mortgage is entered into, that the Lien of such new Mortgage securing the Hedging Obligations, the Bank Product Obligations and any other First Lien Obligations then being incurred shall be enforceable and have the same priority as any existing Mortgage securing then existing Hedging Obligations, Bank Product Obligations and any other First Lien Obligations, (ii) confirming and/or insuring that since the later of the original date of such title insurance product and the date of the Hedge Title Datedown Product delivered most recently prior to (and not in connection with) such additional hedging obligations there has been no change in the condition of title and (iii) there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the applicable Mortgage(s), in each case other than with respect to Liens permitted by each Secured Debt Document (without adding any additional exclusions or exceptions to coverage); and
(4) the applicable Grantor shall, upon the request of the Controlling Representative and/or the Collateral Agent, deliver to the approved title company, the Collateral Agent, the Controlling Representative and/or all other relevant third parties all other items reasonably necessary to (i) record a Hedge Modification, (ii) issue a Hedge Title Datedown Product and (iii) create, perfect or preserve the validity, enforceability and priority of the Lien of the mortgage(s) as set forth above and contemplated hereby and by the Secured Obligations Documents. In the event that the applicable Grantor is unable to satisfy the obligations set forth in clause (3) above with respect to the obligations in sub-clause (i) thereof and clause (4) above with respect to the obligations in sub-clauses (ii) and (iii) thereof, then, and only to the extent that the applicable Grantor is unable to so comply with such sub-clauses, the applicable Grantor shall be required to (w) deliver a new Hedge Mortgage (with such changes as may be required to account for local law matters) with respect to such Hedge Mortgaged Property (which, if necessary to continue the validity or enforceability and/or to maintain the same priority of the existing Mortgage with respect to each such Hedge Mortgaged Property, may be a subordinate lien mortgage with respect to such Hedge Agreement or Swap Transaction or agreement giving rise to Bank Product Obligations (with such changes as may be required to account for local law matters) and shall otherwise comply with the provisions of clause (1) above, (x) comply with the provisions of clause (2) and (y) deliver to the approved title company, the Collateral Agent, the Controlling Representative and/or all other relevant third parties all other items reasonably necessary to record the new Hedge Mortgageherein.
Appears in 2 contracts
Samples: Crossing Lien Intercreditor Agreement (Gogo Inc.), Indenture (Gogo Inc.)
Hedging Obligations and Bank Product Obligations. (a) The Collateral Agent will, as collateral agent hereunder, also perform its undertakings set forth in Section 3.1(a) with respect to any Hedging Obligations under a Hedge Agreement or Bank Product Obligations under an agreement giving rise to Bank Product Obligations that is incurred after the date hereof if:
(1) such Hedge Agreement or agreement giving rise to Bank Product Obligations is identified in accordance with the procedures set forth in Section 3.9(b); and
(2) the Hedge Provider or Bank Product Provider, as applicable, identified pursuant to Section 3.9(b) signs an Intercreditor Joinder and delivers the same to the Collateral Agent (it being understood and agreed that only one Intercreditor Joinder will be required for each master agreement and that separate Intercreditor Joinders will not be required for each Swap Transaction thereunder).
(b) Each time the Borrower enters into any Interest Rate Agreement or Currency Agreement that the Borrower desires to designate as a Hedge Agreement or any agreement giving rise to Bank Product Obligations, the Borrower shall deliver to the Collateral Agent an Additional Secured Obligations Designation (it being understood and agreed that only one Additional Secured Obligations Designation will be required for each master agreement and that separate Additional Secured Obligations Designations will not be required for each Swap Transaction thereunder) that:
(1) states that the Borrower or another Grantor intends to incur such Hedging Obligations or Bank Product Obligations, as applicable, which will be (as specified in such Additional Secured Obligation Designation) First Lien Obligations or, in the case of Hedging Obligations or Bank Product Obligations incurred after the Discharge of First Lien Obligations, Second Lien Obligations pursuant to Section 3.9(e), and that no Secured Debt Document prohibits the incurrence thereof or prohibits such Hedging Obligations or Bank Product Obligations to be secured by a First Lien (or Second Liens in the case of Hedging Obligations or Bank Product Obligations incurred after the Discharge of First Lien Obligations) equally and ratably with all previously existing and future First Lien Obligations (or Second Lien Obligations in the case of Hedging Obligations or Bank Product Obligations incurred after the Discharge of First Lien Obligations);
(2) specifies the name and address of the relevant Hedge Provider or Bank Product Provider and identifies the Hedge Agreement or agreement giving rise to Bank Product Obligations, as applicable;
(3) states that the Borrower and each other Grantor has duly authorized, executed (if applicable) and recorded (or caused to be recorded) in each appropriate governmental office all relevant filings and recordations to ensure that such Hedging Obligations or Bank Product Obligations are secured by the Collateral in accordance with the Security Documents;
(4) attaches as Exhibit 1 to such Additional Secured Obligation Designation a Reaffirmation Agreement in substantially the form attached as Exhibit 1 to Exhibit A of this Agreement, which Reaffirmation Agreement has been duly executed by the Borrower and each other Grantor and Guarantor; and
(5) states that the Borrower has caused a copy of the Additional Secured Obligation Designation and the related Intercreditor Joinder to be delivered to each then existing Secured Debt Representative. Although the Borrower shall be required to deliver a copy of each Additional Secured Obligation Designation and each Intercreditor Joinder to each then existing Secured Debt Representative, the failure to so deliver a copy of the Additional Secured Obligation Designation and/or Intercreditor Joinder to any then existing Secured Debt Representative shall not affect the status of such obligations as Secured Obligations if the other requirements of this Section 3.9 are complied with. Notwithstanding the foregoing, nothing in this Agreement will be construed to allow the Borrower or any other Grantor to incur additional Obligations or Liens or enter into any Swap Transactions if prohibited by the terms of any Secured Debt Document.
(c) With respect to any Hedging Obligations or Bank Product Obligations incurred after the date hereof, the Borrower and each of the other Grantors agrees to take such actions (if any) as may from time to time reasonably be requested by the Collateral Agent, the applicable Hedge Provider or Bank Product Provider, any First Lien Representative Representative, the Second Lien Administrative Agent (after the Discharge of First Lien Obligations) or any Act of Required Secured Parties, and enter into such amendments, modifications and/or supplements to the then existing Guarantees and Security Documents (or execute and deliver such additional Security Documents) as may from time to time be reasonably requested by such Persons (including as contemplated by clause (d) below), to ensure that the Hedging Obligations or Bank Product Obligations incurred after the date hereof are secured by, and entitled to the benefits of, the relevant Security Documents, and each Secured Party (by its acceptance of the benefits hereof) hereby agrees to, and authorizes the Collateral Agent to enter into, any such amendments, modifications and/or supplements (and additional Security Documents). The Borrower and each Grantor hereby further agree that if there are any recording, filing or other similar fees or taxes payable in connection with any of the actions to be taken pursuant to this Section 3.9(c) or Section 3.9(d) all such amounts shall be paid by, and shall be for the account of, the Borrower and the respective Grantors, on a joint and several basis.
(d) Without limitation of the foregoing, the Borrower and each of the other Grantors agrees to take the following actions with respect to any real property Collateral with respect to all Hedge Agreements and Swap Transactions thereunder and all agreements giving rise to Bank Product Obligations, in each case hereafter entered into in the event that any Mortgage with respect to any Mortgaged Property would not be valid and enforceable and/or the priority of the liens evidenced by, or the continuing validity, enforceability and/or priority of the Lien of such Mortgages as security for, the First Lien Obligations would be changed by reason of such Hedge Agreement or Swap Transaction or agreement giving rise to Bank Product Obligations:
(1) the Borrower or the applicable Grantor shall enter into, and deliver to the Collateral Agent, a mortgage modification or new mortgage or deed of trust with regard to each real property owned by the Borrower or the applicable Grantor subject to a mortgage or deed of trust as security for any Secured Obligations (each such mortgage or deed of trust a “Hedge Mortgage” and each such property a “Hedge Mortgaged Property” which, if necessary to continue the validity or enforceability and/or to maintain the same priority of the existing Mortgage(s) for the other First Lien Obligations with respect to such Hedge Mortgaged Property, may be a subordinate lien mortgage with respect to such Hedge Agreement and Swap Transactions and agreement giving rise to Bank Product Obligations, with such changes as may be required to account for local law matters) at the time of such incurrence, in proper form for recording in all applicable jurisdictions, in a form and substance reasonably satisfactory to the Collateral Agent and the Controlling Representative along with payment of all filing and recording taxes, documentary stamp taxes, and similar taxes, charges, and fees, if any, necessary for filing or recording in the recording office of each jurisdiction where such real property to be encumbered thereby is situated (such Mortgage or mortgage modification, the “Hedge Modification”);
(2) the applicable Grantor shall deliver a favorable opinion of appropriate local counsel, addressed to the Controlling Representative, the Collateral Agent and the other Secured Parties, in form and substance reasonably satisfactory to the Controlling Representative;
(3) the applicable Grantor shall have caused a title company reasonably acceptable to the Controlling Representative to have delivered to the Controlling Representative and the Collateral Agent a title insurance policy (or, as applicable, an endorsement to each title insurance policy previously delivered to the Collateral Agent with respect to the Mortgage or Mortgages for the other First Lien Obligations), date down(s) or other evidence reasonably satisfactory to the Controlling Representative and/or the Collateral Agent (each such delivery, a “Hedge Title Datedown Product”) in each case (i) insuring that the validity, enforceability and priority of the liens with respect to, or the continuing validity, enforceability and priority of the Lien of the mortgages as security for, the Hedging Obligations, the Bank Product Obligations and any other First Lien Obligations has not changed and, if a new Mortgage is entered into, that the Lien of such new Mortgage securing the Hedging Obligations, the Bank Product Obligations and any other First Lien Obligations then being incurred shall be enforceable and have the same priority as any existing Mortgage securing then existing Hedging Obligations, Bank Product Obligations and any other First Lien Obligations, (ii) confirming and/or insuring that since the later of the original date of such title insurance product and the date of the Hedge Title Datedown Product delivered most recently prior to (and not in connection with) such additional hedging obligations there has been no change in the condition of title and (iii) there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the applicable Mortgage(s), in each case other than with respect to Liens permitted by each Secured Debt Document (without adding any additional exclusions or exceptions to coverage); and
(4) the applicable Grantor shall, upon the request of the Controlling Representative and/or the Collateral Agent, deliver to the approved title company, the Collateral Agent, the Controlling Representative and/or all other relevant third parties all other items reasonably necessary to (i) record a Hedge Modification, (ii) issue a Hedge Title Datedown Product and (iii) create, perfect or preserve the validity, enforceability and priority of the Lien of the mortgage(s) as set forth above and contemplated hereby and by the Secured Obligations Documents. In the event that the applicable Grantor is unable to satisfy the obligations set forth in clause (3) above with respect to the obligations in sub-clause (i) thereof and clause (4) above with respect to the obligations in sub-clauses (ii) and (iii) thereof, then, and only to the extent that the applicable Grantor is unable to so comply with such sub-clauses, the applicable Grantor shall be required to (w) deliver a new Hedge Mortgage (with such changes as may be required to account for local law matters) with respect to such Hedge Mortgaged Property (which, if necessary to continue the validity or enforceability and/or to maintain the same priority of the existing Mortgage with respect to each such Hedge Mortgaged Property, may be a subordinate lien mortgage with respect to such Hedge Agreement or Swap Transaction or agreement giving rise to Bank Product Obligations (with such changes as may be required to account for local law matters) and shall otherwise comply with the provisions of clause (1) above, (x) comply with the provisions of clause (2) and (y) deliver to the approved title company, the Collateral Agent, the Controlling Representative and/or all other relevant third parties all other items reasonably necessary to record the new Hedge Mortgage.
(e) The Borrower shall have the right, at any time on or after the Discharge of First Lien Obligations has occurred, to enter into any Hedge Agreement or agreement giving rise to Bank Product Obligations evidencing Second Lien Obligations in each case which incurrence is not prohibited by the applicable Secured Debt Documents, and to designate such obligations as Second Lien Obligations in accordance with Section 3.9(b). At any time from and after the date of such designation pursuant to Section 3.9(b) (the “Second Lien Hedge Reference Date”), subject to compliance with Sections 3.9(c) and (d) (with references therein to the First Liens deemed to be references to the Second Liens), the obligations under such Hedge Agreement and agreement giving rise to Bank Product Obligations shall automatically and without further action be treated as Second Lien Obligations for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, and the Third Lien Obligations shall be at all times subordinated and junior to such Second Lien Obligations pursuant to the terms of this Agreement, including with respect to Third Lien Obligations that were incurred or outstanding on or prior to the Second Lien Hedge Reference Date.
Appears in 2 contracts
Samples: Intercreditor Agreement (Alion - BMH CORP), Intercreditor Agreement (Washington Consulting, Inc.)
Hedging Obligations and Bank Product Obligations. (a) The Collateral Agent will, as collateral agent hereunder, also perform its undertakings set forth in Section 3.1(a) with respect to any Hedging Obligations or Bank Product Obligations under a Hedge Agreement or Bank Product Obligations under an agreement giving rise to Bank Product Obligations Agreement that is incurred after the date hereof if:
(1) such Hedge Agreement (and each Swap Transaction in respect thereof) or agreement giving rise to Bank Product Obligations Agreement is identified in accordance with the procedures set forth in Section 3.9(b); and
(2) the Hedge Provider or Bank Product Provider, as applicable, identified pursuant to Section 3.9(b) signs an Intercreditor a Collateral Agency Joinder and delivers the same to the Collateral Agent (it being understood and agreed that only one Intercreditor Collateral Agency Joinder will be required for each master agreement Hedge Agreement and that separate Intercreditor Collateral Agency Joinders will not be required for each Swap Transaction thereunder).
(b) Each time the Borrower a Grantor enters into (i) any Interest Rate Agreement or Currency Agreement Swap Contract that the Borrower such Grantor desires to designate as a Hedge Agreement, (ii) any Swap Transaction under any Hedge Agreement or (iii) any agreement giving rise to Bank Product ObligationsObligations that such Grantor desires to designate as a Bank Product Agreement, the Borrower Issuers shall deliver to the Collateral Agent an Additional Secured Obligations Designation (it being understood and agreed that only one Additional Secured Obligations Designation will be required for each master agreement and that separate Additional Secured Obligations Designations will not be required for each Swap Transaction thereunder) that:
(1) states that the Borrower or another relevant Grantor intends to incur such Hedging Obligations or Bank Product Obligations, as applicable, which will be (as specified in such Additional Secured Obligation Designation) First Priority Lien Obligations or Junior Lien Obligations, as applicable, and that no Secured Debt Document prohibits the incurrence thereof or prohibits such Hedging Obligations or Bank Product Obligations to be secured by a First Priority Lien or a Junior Lien, as applicable, equally and ratably with all previously existing and future First Priority Lien Obligations or Junior Lien Obligations, as applicable;
(2) specifies the name and address of the relevant Hedge Provider or Bank Product Provider and identifies the Hedge Agreement Agreement, Swap Transaction or agreement giving rise to Bank Product ObligationsAgreement, as applicable;
(3) states that the Borrower each Issuer and each other Grantor has duly authorized, executed (if applicable) and recorded (or caused to be recorded) in each appropriate governmental office all relevant filings and recordations to ensure that such Hedging Obligations or Bank Product Obligations are secured by the Collateral in accordance with the Security Documents;
(4) attaches as Exhibit 1 to such Additional Secured Obligation Designation a Reaffirmation Agreement in substantially the form attached as Exhibit 1 to Exhibit A D of this Agreement, which Reaffirmation Agreement has been duly executed by the Borrower Issuers and each other Grantor and Guarantor; and
(5) states that the Borrower has Issuers have caused a copy of the Additional Secured Obligation Designation and the related Intercreditor Collateral Agency Joinder to be delivered to each then existing Secured Debt Representative. Although the Borrower Issuers shall be required to deliver a copy of each Additional Secured Obligation Designation and each Intercreditor Collateral Agency Joinder to each then existing Secured Debt Representative, the failure to so deliver a copy of the Additional Secured Obligation Designation and/or Intercreditor Collateral Agency Joinder to any then existing Secured Debt Representative shall not affect the status of such obligations as Secured Obligations if the other requirements of this Section 3.9 are complied with. Notwithstanding the foregoing, nothing in this Agreement will be construed to allow the Borrower Issuers or any other Grantor to incur additional Obligations or Liens or enter into any Swap Transactions if prohibited by the terms of any Secured Debt Document.
(c) With respect to any Hedging Obligations or and Bank Product Obligations incurred after the date hereofObligations, the Borrower and each of the other Grantors party hereto agrees to take such actions (if any) as may from time to time reasonably be requested by the Collateral Agent, the applicable Hedge Provider or Bank Product Provider, any First Lien Representative or any Act of Required Secured Parties, and enter into such amendments, modifications and/or supplements to the then existing Guarantees and Security Documents (or execute and deliver such additional Security Documents) as may from time to time be reasonably requested by such Persons (including as contemplated by clause (d) below)another party hereto, to ensure that the Hedging Obligations or and Bank Product Obligations incurred after the date hereof are secured by, and entitled to the benefits of, the relevant Security Documents, and each Secured Party (by its acceptance of the benefits hereof) hereby agrees to, and authorizes the Collateral Agent to enter into, any such amendments, modifications and/or supplements (and additional Security Documents). The Borrower Issuers and each Grantor hereby further agree that if there are any recording, filing or other similar fees or taxes payable in connection with any of the actions to be taken pursuant to this Section 3.9(c) or Section 3.9(d) all such amounts shall be paid by, and shall be for the account of, the Borrower Issuers and the respective Grantors, on a joint and several basis.
(d) Without limitation The Grantors shall have the right, at any time on or after the Discharge of Priority Lien Obligations has occurred, to enter into any Hedge Agreement or Bank Product Agreement evidencing Priority Lien Obligations which incurrence is not prohibited by the foregoingapplicable Secured Debt Documents, and to designate such obligations as Priority Lien Obligations in accordance with Section 3.9(b). At any time from and after the date of such designation pursuant to Section 3.9(b) (the “Priority Lien Hedge and Bank Product Reference Date”), the Borrower and each of the other Grantors agrees to take the following actions with respect to any real property Collateral with respect to all Hedge Agreements and Swap Transactions thereunder and all agreements giving rise to Bank Product Obligations, in each case hereafter entered into in the event that any Mortgage with respect to any Mortgaged Property would not be valid and enforceable and/or the priority of the liens evidenced by, or the continuing validity, enforceability and/or priority of the Lien of such Mortgages as security for, the First Lien Obligations would be changed by reason of obligations under such Hedge Agreement or Swap Transaction or agreement giving rise to Bank Product Obligations:
(1) Agreement shall automatically and without further action be treated as Priority Lien Obligations for all purposes of this Agreement, including for purposes of the Borrower or the applicable Grantor shall enter intoLien priorities and rights in respect of Collateral set forth herein, and deliver the Junior Lien Obligations shall be at all times subordinated and junior to such Priority Lien Obligations pursuant to the Collateral Agentterms of this Agreement, a mortgage modification or new mortgage or deed of trust with regard to each real property owned by the Borrower or the applicable Grantor subject to a mortgage or deed of trust as security for any Secured Obligations (each such mortgage or deed of trust a “Hedge Mortgage” and each such property a “Hedge Mortgaged Property” which, if necessary to continue the validity or enforceability and/or to maintain the same priority of the existing Mortgage(s) for the other First Lien Obligations including with respect to such Junior Lien Obligations that were incurred or outstanding on or prior to the Priority Lien Hedge Mortgaged Property, may be a subordinate lien mortgage with respect to such Hedge Agreement and Swap Transactions and agreement giving rise to Bank Product Obligations, with such changes as may be required to account for local law matters) at the time of such incurrence, in proper form for recording in all applicable jurisdictions, in a form and substance reasonably satisfactory to the Collateral Agent and the Controlling Representative along with payment of all filing and recording taxes, documentary stamp taxes, and similar taxes, charges, and fees, if any, necessary for filing or recording in the recording office of each jurisdiction where such real property to be encumbered thereby is situated (such Mortgage or mortgage modification, the “Hedge Modification”);
(2) the applicable Grantor shall deliver a favorable opinion of appropriate local counsel, addressed to the Controlling Representative, the Collateral Agent and the other Secured Parties, in form and substance reasonably satisfactory to the Controlling Representative;
(3) the applicable Grantor shall have caused a title company reasonably acceptable to the Controlling Representative to have delivered to the Controlling Representative and the Collateral Agent a title insurance policy (or, as applicable, an endorsement to each title insurance policy previously delivered to the Collateral Agent with respect to the Mortgage or Mortgages for the other First Lien Obligations), date down(s) or other evidence reasonably satisfactory to the Controlling Representative and/or the Collateral Agent (each such delivery, a “Hedge Title Datedown Product”) in each case (i) insuring that the validity, enforceability and priority of the liens with respect to, or the continuing validity, enforceability and priority of the Lien of the mortgages as security for, the Hedging Obligations, the Bank Product Obligations and any other First Lien Obligations has not changed and, if a new Mortgage is entered into, that the Lien of such new Mortgage securing the Hedging Obligations, the Bank Product Obligations and any other First Lien Obligations then being incurred shall be enforceable and have the same priority as any existing Mortgage securing then existing Hedging Obligations, Bank Product Obligations and any other First Lien Obligations, (ii) confirming and/or insuring that since the later of the original date of such title insurance product and the date of the Hedge Title Datedown Product delivered most recently prior to (and not in connection with) such additional hedging obligations there has been no change in the condition of title and (iii) there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the applicable Mortgage(s), in each case other than with respect to Liens permitted by each Secured Debt Document (without adding any additional exclusions or exceptions to coverage); and
(4) the applicable Grantor shall, upon the request of the Controlling Representative and/or the Collateral Agent, deliver to the approved title company, the Collateral Agent, the Controlling Representative and/or all other relevant third parties all other items reasonably necessary to (i) record a Hedge Modification, (ii) issue a Hedge Title Datedown Product and (iii) create, perfect or preserve the validity, enforceability and priority of the Lien of the mortgage(s) as set forth above and contemplated hereby and by the Secured Obligations Documents. In the event that the applicable Grantor is unable to satisfy the obligations set forth in clause (3) above with respect to the obligations in sub-clause (i) thereof and clause (4) above with respect to the obligations in sub-clauses (ii) and (iii) thereof, then, and only to the extent that the applicable Grantor is unable to so comply with such sub-clauses, the applicable Grantor shall be required to (w) deliver a new Hedge Mortgage (with such changes as may be required to account for local law matters) with respect to such Hedge Mortgaged Property (which, if necessary to continue the validity or enforceability and/or to maintain the same priority of the existing Mortgage with respect to each such Hedge Mortgaged Property, may be a subordinate lien mortgage with respect to such Hedge Agreement or Swap Transaction or agreement giving rise to Bank Product Obligations (with such changes as may be required to account for local law matters) and shall otherwise comply with the provisions of clause (1) above, (x) comply with the provisions of clause (2) and (y) deliver to the approved title company, the Collateral Agent, the Controlling Representative and/or all other relevant third parties all other items reasonably necessary to record the new Hedge MortgageReference Date.
Appears in 2 contracts
Samples: Collateral Agency Agreement, Collateral Agency Agreement (Gogo Inc.)
Hedging Obligations and Bank Product Obligations. (a) The Collateral Agent Trustee will, as collateral agent trustee hereunder, also perform its undertakings set forth in Section 3.1(a) with respect to any Hedging Obligations or Bank Product Obligations under a Hedge Agreement or Bank Product Obligations under an agreement giving rise to Bank Product Obligations that is incurred after the date hereof if:
(1) such Hedge Agreement (and each Swap Transaction in respect thereof) or agreement giving rise to Bank Product Obligations is identified in accordance with the procedures set forth in Section 3.9(b); and
(2) the Hedge Provider or Bank Product Provider, as applicable, identified pursuant to Section 3.9(b) signs an Intercreditor a Collateral Trust Joinder and delivers the same to the Collateral Agent Trustee (it being understood and agreed that only one Intercreditor Collateral Trust Joinder will be required for each master agreement Hedge Agreement and that separate Intercreditor Collateral Trust Joinders will not be required for each Swap Transaction thereunder).
(b) Each time that the Borrower enters into (i) any Interest Rate Agreement or Currency Agreement that the Borrower desires to designate as a Hedge Agreement, (ii) any Swap Transaction under any Hedge Agreement or (iii) any agreement giving rise to Bank Product Obligations, the Borrower shall deliver to the Collateral Agent Trustee an Additional Secured Obligations Designation (it being understood and agreed that only one Additional Secured Obligations Designation will be required for each master agreement and that separate Additional Secured Obligations Designations will not be required for each Swap Transaction thereunder) that:
(1) states that the Borrower or another Grantor Guarantor intends to incur such Hedging Obligations or Bank Product Obligations, as applicable, which will be (as specified in such Additional Secured Obligation Designation) First Priority Lien Obligations, Debt Obligations and that no Secured Debt Document prohibits the incurrence thereof or prohibits such Hedging Obligations or Bank Product Obligations to be secured by a First Priority Lien equally and ratably with all previously existing and future First Priority Lien Debt Obligations;
(2) specifies the name and address of the relevant Hedge Provider or Bank Product Provider and identifies the Hedge Agreement Agreement, Swap Transaction or agreement giving rise to Bank Product Obligations, as applicable;
(3) states that the Borrower and each other Grantor Guarantor has duly authorized, executed (if applicable) and recorded (or caused to be recorded) in each appropriate governmental office all relevant filings and recordations to ensure that such Hedging Obligations or Bank Product Obligations are secured by the Collateral in accordance with the Security Documents;
(4) attaches as Exhibit 1 to such Additional Secured Obligation Designation a Reaffirmation Agreement in substantially the form attached as Exhibit 1 to Exhibit A D of this Agreement, which Reaffirmation Agreement has been duly executed by the Borrower and each other Grantor and Guarantor; and
(5) states that the Borrower has caused a copy of the Additional Secured Obligation Designation and the related Intercreditor Collateral Trust Joinder to be delivered to each then existing Secured Debt Representative. Although the Borrower shall be required to deliver a copy of each Additional Secured Obligation Designation and each Intercreditor Collateral Trust Joinder to each then existing Secured Debt Representative, the failure to so deliver a copy of the Additional Secured Obligation Designation and/or Intercreditor Collateral Trust Joinder to any then existing Secured Debt Representative shall not affect the status of such obligations as Secured Obligations if the other requirements of this Section 3.9 are complied with. Notwithstanding the foregoing, nothing in this Agreement will be construed to allow the Borrower or any other Grantor Guarantor to incur additional Obligations Indebtedness or Liens or enter into any Swap Transactions if prohibited by the terms of any Secured Debt Document.
(c) With respect to any Hedging Obligations or Bank Product Obligations incurred after the date hereofObligations, the Borrower and each of the other Grantors Guarantors agrees to take such actions (if any) as necessary and appropriate and as may from time to time reasonably be requested by the Collateral Agent, the applicable Hedge Provider or Bank Product ProviderTrustee, any First Priority Lien Debt Representative or any Act of Required Secured Parties, and enter into such amendments, modifications and/or supplements to the then existing Guarantees and Security Documents (or execute and deliver such additional Security Documents) as may from time to time be reasonably requested by such Persons (including as contemplated by clause (d) below), to ensure that the Hedging Obligations or Bank Product Obligations incurred after the date hereof are secured by, and entitled to the benefits of, the relevant Security Documents, and each Secured Party (by its acceptance of the benefits hereof) hereby agrees to, and authorizes the Collateral Agent Trustee to enter into, any such amendments, modifications and/or supplements (and additional Security Documents). The Borrower and each Grantor Guarantor hereby further agree that if there are any recording, filing or other similar fees or taxes payable in connection with any of the actions to be taken pursuant to this Section 3.9(c) or Section 3.9(d) all such amounts shall be paid by, and shall be for the account of, the Borrower and the respective GrantorsGuarantors, on a joint and several basis.
(d) Without limitation of the foregoing, the Borrower and each of the other Grantors Guarantor agrees to take the following actions with respect to any real property Collateral with respect to all Hedge Agreements and Swap Transactions thereunder and all agreements giving rise to Bank Product Obligations, in each case hereafter entered into in the event that any Mortgage with respect to any Mortgaged Property would not be valid and enforceable and/or the priority of the liens evidenced by, or the continuing validity, enforceability and/or priority of the Lien of such Mortgages as security for, the First Priority Lien Debt Obligations would be changed by reason of such Hedge Agreement or Swap Transaction or agreement giving rise to Bank Product ObligationsTransaction:
(1) the Borrower or the applicable Grantor Guarantor shall enter into, and deliver to the Collateral AgentTrustee, a mortgage modification or new mortgage or deed of trust with regard to each real property owned by the Borrower or the applicable Grantor subject to a mortgage or deed of trust as security for any Secured Obligations (each such mortgage or deed of trust a “Hedge Mortgage” and each such property a “Hedge Mortgaged Property” which, if necessary to continue the validity or enforceability and/or to maintain the same priority of the existing Mortgage(s) for the other First Priority Lien Debt Obligations with respect to such Hedge Mortgaged Property, may be a subordinate lien mortgage with respect to such Hedge Agreement and Swap Transactions and agreement giving rise to Bank Product ObligationsTransactions, with such changes as may be required to account for local law matters) at the time of such incurrence, in proper form for recording in all applicable jurisdictions, in a form and substance reasonably satisfactory to the Collateral Agent Trustee and the Controlling Representative along with payment of all filing and recording taxes, documentary stamp taxes, and similar taxes, charges, and fees, if any, necessary for filing or recording in the recording office of each jurisdiction where such real property to be encumbered thereby is situated (such Mortgage or mortgage modification, the “Hedge Modification”);
(2) the Borrower or the applicable Grantor Guarantor shall deliver a favorable opinion of appropriate local counsel, addressed to the Controlling Representative, the Collateral Agent Trustee and the other Secured Parties, in form and substance reasonably satisfactory to the Controlling Representative;
(3) the Borrower or the applicable Grantor Guarantor shall have caused a title company reasonably acceptable to the Controlling Representative to have delivered to the Controlling Representative and the Collateral Agent Trustee a title insurance policy (or, as applicable, an endorsement to each title insurance policy previously delivered to the Collateral Agent Trustee with respect to the Mortgage or Mortgages for the other First Priority Lien Debt Obligations), date down(s) or other evidence reasonably satisfactory to the Controlling Representative and/or the Collateral Agent (each such delivery, a “Hedge Title Datedown Product”) in each case (i) insuring that the validity, enforceability and priority of the liens with respect to, or the continuing validity, enforceability and priority of the Lien of the mortgages as security for, the Hedging Obligations, the Bank Product Obligations and any other First Priority Lien Debt Obligations has not changed and, if a new Mortgage is entered into, that the Lien of such new Mortgage securing the Hedging Obligations, the Bank Product Obligations and any other First Priority Lien Debt Obligations then being incurred shall be enforceable and have the same priority as any existing Mortgage securing then existing Hedging Obligations, Bank Product Obligations and any other First Priority Lien Debt Obligations, (ii) confirming and/or insuring that since the later of the original date of such title insurance product and the date of the Hedge Title Datedown Product delivered most recently prior to (and not in connection with) such additional hedging obligations (including any comparable title datedown product delivered pursuant to Section 3.8(d)) there has been no change in the condition of title and (iii) there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the applicable Mortgage(s), in each case other than with respect to Liens permitted by each Secured Debt Document (without adding any additional exclusions or exceptions to coverage); and
(4) the Borrower or the applicable Grantor shall, upon the request of the Controlling Representative and/or the Collateral Agent, Guarantor shall deliver to the approved title company, the Collateral AgentTrustee, the Controlling Representative and/or all other relevant third parties all other items reasonably necessary to (i) record a Hedge Modification, (ii) issue a Hedge Title Datedown Product and (iii) create, perfect or preserve the validity, enforceability and priority of the Lien of the mortgage(s) as set forth above and contemplated hereby and by the Secured Obligations Documents. In the event that the Borrower or the applicable Grantor Guarantor is unable to satisfy the obligations set forth in clause (3) above with respect to the obligations in sub-clause (i) thereof and clause (4) above with respect to the obligations in sub-clauses (ii) and (iii) thereof, then, and only to the extent that the applicable Grantor Guarantor is unable to so comply with such sub-clauses, the applicable Grantor Guarantor shall be required to (w) deliver a new Hedge Mortgage (with such changes as may be required to account for local law matters) with respect to such Hedge Mortgaged Property (which, if necessary to continue the validity or enforceability and/or to maintain the same priority of the existing exiting Mortgage with respect to each such Hedge Mortgaged Property, may be a subordinate lien mortgage with respect to such Hedge Agreement or Swap Transaction or agreement giving rise to Bank Product Obligations (with such changes as may be required to account for local law matters) and shall otherwise comply with the provisions of clause (1) above, (x) comply with the provisions of clause (2) and (y) deliver to the approved title company, the Collateral AgentTrustee, the Controlling Representative and/or all other relevant third parties all other items reasonably necessary to record the new Hedge Mortgage.
(e) The Borrower shall have the right, at any time on or after the Discharge of Priority Lien Debt Obligations has occurred, to enter into any Hedge Agreement evidencing Priority Lien Debt Obligations which incurrence is not prohibited by the applicable Secured Debt Documents, and to designate such obligations as Priority Lien Debt Obligations in accordance with Section 3.9(b). At any time from and after the date of such designation pursuant to Section 3.9(b) (the “Priority Lien Hedge Reference Date”), subject to compliance with Sections 3.9(c) and (d), the obligations under such Hedge Agreement shall automatically and without further action be treated as Priority Lien Debt Obligations for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, and the Parity Lien Debt Obligations shall be at all times subordinated and junior to such Priority Lien Debt Obligations pursuant to the terms of this Agreement, including with respect to Parity Lien Debt Obligations that were incurred or outstanding on or prior to the Priority Lien Hedge Reference Date.
Appears in 1 contract
Hedging Obligations and Bank Product Obligations. (a) The Collateral Agent will, as collateral agent hereunder, also perform its undertakings set forth in Section 3.1(a) with respect to any Hedging Obligations or Bank Product Obligations under a Hedge Agreement or Bank Product Obligations under an agreement giving rise to Bank Product Obligations Agreement that is incurred after the date hereof if:
(1) such Hedge Agreement (and each Swap Transaction in respect thereof) or agreement giving rise to Bank Product Obligations Agreement is identified in accordance with the procedures set forth in Section 3.9(b); and
(2) the Hedge Provider or Bank Product Provider, as applicable, identified pursuant to Section 3.9(b) signs an Intercreditor a Collateral Agency Joinder and delivers the same to the Collateral Agent (it being understood and agreed that only one Intercreditor Collateral Agency Joinder will be required for each master agreement Hedge Agreement and that separate Intercreditor Collateral Agency Joinders will not be required for each Swap Transaction thereunder).
(b) Each time the Borrower a Grantor enters into (i) any Interest Rate Agreement or Currency Agreement Swap Contract that the Borrower such Grantor desires to designate as a Hedge Agreement, (ii) any Swap Transaction under any Hedge Agreement or (iii) any agreement giving rise to Bank Product ObligationsObligations that such Grantor desires to designate as a Bank Product Agreement, the Borrower Issuers shall deliver to the Collateral Agent an Additional Secured Obligations Designation (it being understood and agreed that only one Additional Secured Obligations Designation will be required for each master agreement and that separate Additional Secured Obligations Designations will not be required for each Swap Transaction thereunder) that:
(1) states that the Borrower or another relevant Grantor intends to incur such Hedging Obligations or Bank Product Obligations, as applicable, which will be (as specified in such Additional Secured Obligation Designation) First Priority Lien Obligations or Junior Lien Obligations, as applicable, and that no Secured Debt Document prohibits the incurrence thereof or prohibits such Hedging Obligations or Bank Product Obligations to be secured by a First Priority Lien or a Junior Lien, as applicable, equally and ratably with all previously existing and future First Priority Lien Obligations or Junior Lien Obligations, as applicable;
(2) specifies the name and address of the relevant Hedge Provider or Bank Product Provider and identifies the Hedge Agreement Agreement, Swap Transaction or agreement giving rise to Bank Product ObligationsAgreement, as applicable;
(3) states that the Borrower each Issuer and each other Grantor has duly authorized, executed (if applicable) and recorded (or caused to be recorded) in each appropriate governmental office all relevant filings and recordations to ensure that such Hedging Obligations or Bank Product Obligations are secured by the Collateral in accordance with the Security Documents;
(4) attaches as Exhibit 1 to such Additional Secured Obligation Designation a Reaffirmation Agreement in substantially the form attached as Exhibit 1 to Exhibit A D of this Agreement, which Reaffirmation Agreement has been duly executed by the Borrower Issuers and each other Grantor and Guarantor; and
(5) states that the Borrower has Issuers have caused a copy of the Additional Secured Obligation Designation and the related Intercreditor Collateral Agency Joinder to be delivered to each then existing Secured Debt Representative. Although the Borrower Issuers shall be required to deliver a copy of each Additional Secured Obligation Designation and each Intercreditor Collateral Agency Joinder to each then existing Secured Debt Representative, the failure to so deliver a copy of the Additional Secured Obligation Designation and/or Intercreditor Collateral Agency Joinder to any then existing Secured Debt Representative shall not affect the status of such obligations as Secured Obligations if the other requirements of this Section 3.9 are complied with. Notwithstanding the foregoing, nothing in this Agreement will be construed to allow the Borrower Issuers or any other Grantor to incur additional Obligations or Liens or enter into any Swap Transactions if prohibited by the terms of any Secured Debt Document.
(c) With respect to any Hedging Obligations or and Bank Product Obligations incurred after the date hereofObligations, the Borrower Issuers and each of the other Grantors agrees to take such actions (if any) as necessary or as otherwise may from time to time reasonably be requested by the Collateral Agent, the applicable Hedge Provider or Bank Product Providerany Priority Lien Representative, any First Lien Representative or any Act of Required Secured Parties, any Junior Lien Representative or the Required Junior Lien Debtholders, as applicable, and enter into such amendments, modifications and/or supplements to the then existing Guarantees and Security Documents (or execute and deliver such additional Security Documents) as may from time to time be reasonably requested by such Persons (including as contemplated by clause (d) below)Persons, to ensure that the Hedging Obligations or and Bank Product Obligations incurred after the date hereof are secured by, and entitled to the benefits of, the relevant Security Documents, and each Secured Party (by its acceptance of the benefits hereof) hereby agrees to, and authorizes the Collateral Agent to enter into, any such amendments, modifications and/or supplements (and additional Security Documents). The Borrower Issuers and each Grantor hereby further agree that if there are any recording, filing or other similar fees or taxes payable in connection with any of the actions to be taken pursuant to this Section 3.9(c) or Section 3.9(d) all such amounts shall be paid by, and shall be for the account of, the Borrower Issuers and the respective Grantors, on a joint and several basis.
(d) Without limitation The Grantors shall have the right, at any time on or after the Discharge of Priority Lien Obligations has occurred, to enter into any Hedge Agreement or Bank Product Agreement evidencing Priority Lien Obligations which incurrence is not prohibited by the foregoingapplicable Secured Debt Documents, and to designate such obligations as Priority Lien Obligations in accordance with Section 3.9(b). At any time from and after the date of such designation pursuant to Section 3.9(b) (the “Priority Lien Hedge and Bank Product Reference Date”), subject to compliance with Sections 3.9(c), the Borrower and each of the other Grantors agrees to take the following actions with respect to any real property Collateral with respect to all Hedge Agreements and Swap Transactions thereunder and all agreements giving rise to Bank Product Obligations, in each case hereafter entered into in the event that any Mortgage with respect to any Mortgaged Property would not be valid and enforceable and/or the priority of the liens evidenced by, or the continuing validity, enforceability and/or priority of the Lien of such Mortgages as security for, the First Lien Obligations would be changed by reason of obligations under such Hedge Agreement or Swap Transaction or agreement giving rise to Bank Product Obligations:
(1) Agreement shall automatically and without further action be treated as Priority Lien Obligations for all purposes of this Agreement, including for purposes of the Borrower or the applicable Grantor shall enter intoLien priorities and rights in respect of Collateral set forth herein, and deliver the Junior Lien Obligations shall be at all times subordinated and junior to such Priority Lien Obligations pursuant to the Collateral Agentterms of this Agreement, a mortgage modification or new mortgage or deed of trust with regard to each real property owned by the Borrower or the applicable Grantor subject to a mortgage or deed of trust as security for any Secured Obligations (each such mortgage or deed of trust a “Hedge Mortgage” and each such property a “Hedge Mortgaged Property” which, if necessary to continue the validity or enforceability and/or to maintain the same priority of the existing Mortgage(s) for the other First Lien Obligations including with respect to such Junior Lien Obligations that were incurred or outstanding on or prior to the Priority Lien Hedge Mortgaged Property, may be a subordinate lien mortgage with respect to such Hedge Agreement and Swap Transactions and agreement giving rise to Bank Product Obligations, with such changes as may be required to account for local law matters) at the time of such incurrence, in proper form for recording in all applicable jurisdictions, in a form and substance reasonably satisfactory to the Collateral Agent and the Controlling Representative along with payment of all filing and recording taxes, documentary stamp taxes, and similar taxes, charges, and fees, if any, necessary for filing or recording in the recording office of each jurisdiction where such real property to be encumbered thereby is situated (such Mortgage or mortgage modification, the “Hedge Modification”);
(2) the applicable Grantor shall deliver a favorable opinion of appropriate local counsel, addressed to the Controlling Representative, the Collateral Agent and the other Secured Parties, in form and substance reasonably satisfactory to the Controlling Representative;
(3) the applicable Grantor shall have caused a title company reasonably acceptable to the Controlling Representative to have delivered to the Controlling Representative and the Collateral Agent a title insurance policy (or, as applicable, an endorsement to each title insurance policy previously delivered to the Collateral Agent with respect to the Mortgage or Mortgages for the other First Lien Obligations), date down(s) or other evidence reasonably satisfactory to the Controlling Representative and/or the Collateral Agent (each such delivery, a “Hedge Title Datedown Product”) in each case (i) insuring that the validity, enforceability and priority of the liens with respect to, or the continuing validity, enforceability and priority of the Lien of the mortgages as security for, the Hedging Obligations, the Bank Product Obligations and any other First Lien Obligations has not changed and, if a new Mortgage is entered into, that the Lien of such new Mortgage securing the Hedging Obligations, the Bank Product Obligations and any other First Lien Obligations then being incurred shall be enforceable and have the same priority as any existing Mortgage securing then existing Hedging Obligations, Bank Product Obligations and any other First Lien Obligations, (ii) confirming and/or insuring that since the later of the original date of such title insurance product and the date of the Hedge Title Datedown Product delivered most recently prior to (and not in connection with) such additional hedging obligations there has been no change in the condition of title and (iii) there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the applicable Mortgage(s), in each case other than with respect to Liens permitted by each Secured Debt Document (without adding any additional exclusions or exceptions to coverage); and
(4) the applicable Grantor shall, upon the request of the Controlling Representative and/or the Collateral Agent, deliver to the approved title company, the Collateral Agent, the Controlling Representative and/or all other relevant third parties all other items reasonably necessary to (i) record a Hedge Modification, (ii) issue a Hedge Title Datedown Product and (iii) create, perfect or preserve the validity, enforceability and priority of the Lien of the mortgage(s) as set forth above and contemplated hereby and by the Secured Obligations Documents. In the event that the applicable Grantor is unable to satisfy the obligations set forth in clause (3) above with respect to the obligations in sub-clause (i) thereof and clause (4) above with respect to the obligations in sub-clauses (ii) and (iii) thereof, then, and only to the extent that the applicable Grantor is unable to so comply with such sub-clauses, the applicable Grantor shall be required to (w) deliver a new Hedge Mortgage (with such changes as may be required to account for local law matters) with respect to such Hedge Mortgaged Property (which, if necessary to continue the validity or enforceability and/or to maintain the same priority of the existing Mortgage with respect to each such Hedge Mortgaged Property, may be a subordinate lien mortgage with respect to such Hedge Agreement or Swap Transaction or agreement giving rise to Bank Product Obligations (with such changes as may be required to account for local law matters) and shall otherwise comply with the provisions of clause (1) above, (x) comply with the provisions of clause (2) and (y) deliver to the approved title company, the Collateral Agent, the Controlling Representative and/or all other relevant third parties all other items reasonably necessary to record the new Hedge MortgageReference Date.
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Hedging Obligations and Bank Product Obligations. (a) The Collateral Agent Trustee will, as collateral agent trustee hereunder, also perform its undertakings set forth in Section 3.1(a) with respect to any Hedging Obligations or Bank Product Obligations under a Hedge Agreement or Bank Product Obligations under an agreement giving rise to Bank Product Obligations that is incurred after the date hereof if:
(1) such Hedge Agreement (and each Swap Transaction in respect thereof) or agreement giving rise to Bank Product Obligations is identified in accordance with the procedures set forth in Section 3.9(b); and
(2) the Hedge Provider or Bank Product Provider, as applicable, identified pursuant to Section 3.9(b) signs an Intercreditor a Collateral Trust Joinder and delivers the same to the Collateral Agent Trustee (it being understood and agreed that only one Intercreditor Collateral Trust Joinder will be required for each master agreement Hedge Agreement and that separate Intercreditor Collateral Trust Joinders will not be required for each Swap Transaction thereunder).
(b) Each time that the Borrower enters into (i) any Interest Rate Agreement or Currency Agreement that the Borrower desires to designate as a Swap Transaction under any Hedge Agreement or (ii) any agreement giving rise to Bank Product Obligations, the Borrower shall deliver to the Collateral Agent Trustee an Additional Secured Obligations Designation (it being understood and agreed that only one Additional Secured Obligations Designation will be required for each master agreement and that separate Additional Secured Obligations Designations will not be required for each Swap Transaction thereunder) that:
(1) states that the Borrower or another Grantor Guarantor intends to incur such Hedging Obligations or Bank Product Obligations, as applicable, which will be (as specified in such Additional Secured Obligation Designation) First Priority Lien Obligations, Debt Obligations and that no Secured Debt Document prohibits the incurrence thereof or prohibits such Hedging Obligations or Bank Product Obligations to be secured by a First Priority Lien equally and ratably with all previously existing and future First Priority Lien Debt Obligations;
(2) specifies the name and address of the relevant Hedge Provider or Bank Product Provider and identifies the Hedge Agreement Agreement, Swap Transaction or agreement giving rise to Bank Product Obligations, as applicable;
(3) states that the Borrower and each other Grantor Guarantor has duly authorized, executed (if applicable) and recorded (or caused to be recorded) in each appropriate governmental office all relevant filings and recordations to ensure that such Hedging Obligations or Bank Product Obligations are secured by the Collateral in accordance with the Security Documents;
(4) attaches as Exhibit 1 to such Additional Secured Obligation Designation a Reaffirmation Agreement in substantially the form attached as Exhibit 1 to Exhibit A D of this Agreement, which Reaffirmation Agreement has been duly executed by the Borrower and each other Grantor and Guarantor; and
(5) states that the Borrower has caused a copy of the Additional Secured Obligation Designation and the related Intercreditor Collateral Trust Joinder to be delivered to each then existing Secured Debt Representative. Although the Borrower shall be required to deliver a copy of each Additional Secured Obligation Designation and each Intercreditor Collateral Trust Joinder to each then existing Secured Debt Representative, the failure to so deliver a copy of the Additional Secured Obligation Designation and/or Intercreditor Collateral Trust Joinder to any then existing Secured Debt Representative shall not affect the status of such obligations as Secured Obligations if the other requirements of this Section 3.9 are complied with. Notwithstanding the foregoing, nothing in this Agreement will be construed to allow the Borrower or any other Grantor Guarantor to incur additional Obligations Funded Debt or Liens or enter into any Swap Transactions if prohibited by the terms of any Secured Debt Document.
(c) With respect to any Hedging Obligations or Bank Product Obligations incurred after the date hereofObligations, the Borrower and each of the other Grantors Guarantors agrees to take such actions (if any) as necessary and appropriate and as may from time to time reasonably be requested by the Collateral Agent, the applicable Hedge Provider or Bank Product ProviderTrustee, any First Priority Lien Debt Representative or any Act of Required Secured Parties, and enter into such amendments, modifications and/or supplements to the then existing Guarantees and Security Documents (or execute and deliver such additional Security Documents) as may from time to time be reasonably requested by such Persons (including as contemplated by clause (d) below), to ensure that the Hedging Obligations or Bank Product Obligations incurred after the date hereof are secured by, and entitled to the benefits of, the relevant Security Documents, and each Secured Party (by its acceptance of the benefits hereof) hereby agrees to, and authorizes the Collateral Agent Trustee to enter into, any such amendments, modifications and/or supplements (and additional Security Documents). The Borrower and each Grantor Guarantor hereby further agree that if there are any recording, filing or other similar fees or taxes payable in connection with any of the actions to be taken pursuant to this Section 3.9(c) or Section 3.9(d) all such amounts shall be paid by, and shall be for the account of, the Borrower and the respective GrantorsGuarantors, on a joint and several basis.
(d) Without limitation of the foregoing, the Borrower and each of the other Grantors Guarantor agrees to take the following actions with respect to any real property Collateral with respect to all Hedge Agreements and Swap Transactions thereunder and all agreements giving rise to Bank Product Obligations, in each case hereafter entered into in the event that any Mortgage with respect to any Mortgaged Property would not be valid and enforceable and/or the priority of the liens evidenced by, or the continuing validity, enforceability and/or priority of the Lien of such Mortgages as security for, the First Priority Lien Debt Obligations would be changed by reason of such Hedge Agreement or Swap Transaction or agreement giving rise to Bank Product ObligationsTransaction:
(1) the Borrower or the applicable Grantor Guarantor shall enter into, and deliver to the Collateral AgentTrustee, a mortgage modification or new mortgage or deed of trust with regard to each real property owned by the Borrower or the applicable Grantor subject to a mortgage or deed of trust as security for any Secured Obligations (each such mortgage or deed of trust a “Hedge Mortgage” and each such property a “Hedge Mortgaged Property” which, if necessary to continue the validity or enforceability and/or to maintain the same priority of the existing Mortgage(s) for the other First Priority Lien Debt Obligations with respect to such Hedge Mortgaged Property, may be a subordinate lien mortgage with respect to such Hedge Agreement and Swap Transactions and agreement giving rise to Bank Product ObligationsTransactions, with such changes as may be required to account for local law matters) at the time of such incurrence, in proper form for recording in all applicable jurisdictions, in a form and substance reasonably satisfactory to the Collateral Agent Trustee and the Controlling Representative along with payment of all filing and recording taxes, documentary stamp taxes, and similar taxes, charges, and fees, if any, necessary for filing or recording in the recording office of each jurisdiction where such real property to be encumbered thereby is situated (such Mortgage or mortgage modification, the “Hedge Modification”);
(2) the Borrower or the applicable Grantor Guarantor shall deliver a favorable opinion of appropriate local counsel, addressed to the Controlling Representative, the Collateral Agent Trustee and the other Secured Parties, in form and substance reasonably satisfactory to the Controlling Representative;
(3) the Borrower or the applicable Grantor Guarantor shall have caused a title company reasonably acceptable to the Controlling Representative to have delivered to the Controlling Representative and the Collateral Agent Trustee a title insurance policy (or, as applicable, an endorsement to each title insurance policy previously delivered to the Collateral Agent Trustee with respect to the Mortgage or Mortgages for the other First Priority Lien Debt Obligations), date down(s) or other evidence reasonably satisfactory to the Controlling Representative and/or the Collateral Agent (each such delivery, a “Hedge Title Datedown Product”) in each case (i) insuring that the validity, enforceability and priority of the liens with respect to, or the continuing validity, enforceability and priority of the Lien of the mortgages as security for, the Hedging Obligations, the Bank Product Obligations and any other First Priority Lien Debt Obligations has not changed and, if a new Mortgage is entered into, that the Lien of such new Mortgage securing the Hedging Obligations, the Bank Product Obligations and any other First Priority Lien Debt Obligations then being incurred shall be enforceable and have the same priority as any existing Mortgage securing then existing Hedging Obligations, Bank Product Obligations and any other First Priority Lien Debt Obligations, (ii) confirming and/or insuring that since the later of the original date of such title insurance product and the date of the Hedge Title Datedown Product delivered most recently prior to (and not in connection with) such additional hedging obligations (including any comparable title datedown product delivered pursuant to Section 3.8(d)) there has been no change in the condition of title and (iii) there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the applicable Mortgage(s), in each case other than with respect to Liens permitted by each Secured Debt Document (without adding any additional exclusions or exceptions to coverage); and
(4) the Borrower or the applicable Grantor shall, upon the request of the Controlling Representative and/or the Collateral Agent, Guarantor shall deliver to the approved title company, the Collateral AgentTrustee, the Controlling Representative and/or all other relevant third parties all other items reasonably necessary to (i) record a Hedge Modification, (ii) issue a Hedge Title Datedown Product and (iii) create, perfect or preserve the validity, enforceability and priority of the Lien of the mortgage(s) as set forth above and contemplated hereby and by the Secured Obligations Documents. In the event that the Borrower or the applicable Grantor Guarantor is unable to satisfy the obligations set forth in clause (3) above with respect to the obligations in sub-clause (i) thereof and clause (4) above with respect to the obligations in sub-clauses (ii) and (iii) thereof, then, and only to the extent that the applicable Grantor Guarantor is unable to so comply with such sub-clauses, the applicable Grantor Guarantor shall be required to (w) deliver a new Hedge Mortgage (with such changes as may be required to account for local law matters) with respect to such Hedge Mortgaged Property (which, if necessary to continue the validity or enforceability and/or to maintain the same priority of the existing exiting Mortgage with respect to each such Hedge Mortgaged Property, may be a subordinate lien mortgage with respect to such Hedge Agreement or Swap Transaction or agreement giving rise to Bank Product Obligations (with such changes as may be required to account for local law matters) and shall otherwise comply with the provisions of clause (1) above, (x) comply with the provisions of clause (2) and (y) deliver to the approved title company, the Collateral AgentTrustee, the Controlling Representative and/or all other relevant third parties all other items reasonably necessary to record the new Hedge Mortgage.
(e) The Borrower shall have the right, at any time on or after the Discharge of Priority Lien Debt Obligations has occurred, to enter into any Hedge Agreement evidencing Priority Lien Debt Obligations which incurrence is not prohibited by the applicable Secured Debt Documents, and to designate such obligations as Priority Lien Debt Obligations in accordance with Section 3.9(b). At any time from and after the date of such designation pursuant to Section 3.9(b) (the “Priority Lien Hedge Reference Date”), subject to compliance with Sections 3.9(c) and (d), the obligations under such Hedge Agreement shall automatically and without further action be treated as Priority Lien Debt Obligations for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, and the Parity Lien Debt Obligations shall be at all times subordinated and junior to such Priority Lien Debt Obligations pursuant to the terms of this Agreement, including with respect to Parity Lien Debt Obligations that were incurred or outstanding on or prior to the Priority Lien Hedge Reference Date.
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