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Common use of Priority of Claims Clause in Contracts

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 5 contracts

Samples: Amendment Agreement (MPBP Holdings, Inc.), Credit Agreement (Lamar Media Corp/De), Credit Agreement (SeaWorld Entertainment, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), ) shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents, and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for upon which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 5 contracts

Samples: Restatement Agreement (Virtu Financial, Inc.), Credit Agreement (Virtu Financial, Inc.), Credit Agreement (Virtu Financial, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent Authorized Representative or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company any Pledgor or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent Authorized Representative or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied by the Applicable Authorized Representatives (i) FIRST, to the payment of all amounts owing to each Collateral Agent incurred by the Applicable Authorized Representative (in its capacity as such) in connection with such sale or collection or otherwise owing to it pursuant to the terms of any Secured Credit Document, Document and (ii) SECOND, subject to Section 1.031.01(b), to the extent any Proceeds remain after payment pursuant to clause (i), to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series basis in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may directDocuments. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. If, despite the provisions of Section 2.01(a)(ii), any Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Obligations to which it is then entitled in accordance with this Section 2.01(a), such Secured Party shall hold such payment or recovery in trust for the benefit of all Secured Parties for distribution in accordance with this Section 2.01(a). (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.031.01(b)), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority. Notwithstanding anything in this Agreement or any other Secured Credit Documents to the contrary, Cash Collateral pledged to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of Letters of Credit or otherwise held by the Administrative Agent or the Collateral Agent pursuant to Section 2.05(c) or (j), 2.11(d) or (e), or 2.22 of the Credit Agreement (or any equivalent successor provision) shall be applied as specified in such Section of the Credit Agreement and shall not constitute Shared Collateral.

Appears in 4 contracts

Samples: Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.), Credit Agreement (Norwegian Cruise Line Holdings Ltd.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company Parent Borrower or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-First Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each the Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-First Lien Obligations, to the Company Parent Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the samesame pursuant to the Second Lien Intercreditor Agreement or otherwise, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations Obligations, after giving effect to the Second Lien Intercreditor Agreement, if applicable, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-First Lien Secured Party hereby agrees that the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 3 contracts

Samples: Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Priority Secured Party is taking action to enforce rights in respect of any Shared Common Collateral, or any distribution is made in respect of any Shared Common Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-Lien Priority Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Common Collateral, the proceeds of any sale, collection or other liquidation of any such Common Collateral by any First-Lien Priority Secured Party or received by the Applicable Collateral Agent or any First-Lien Priority Secured Party pursuant to any such intercreditor agreement with respect to such Shared Common Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Priority Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Common Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to by the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to order specified in Section 1.03, to the payment in full 4.02 of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to Collateral Agreement (or the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may directEquivalent Provision thereof). Notwithstanding the foregoing, with respect to any Shared Common Collateral for which a third party (other than a First-Lien Priority Secured PartyParty and, without limiting the foregoing, after taking into account the effect of any applicable intercreditor agreements) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Priority Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Priority Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Common Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Common Collateral or Proceeds to be distributed in respect of the Series of First-Lien Priority Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Priority Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Priority Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Priority Obligations granted on the Shared Common Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Priority Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.031.01(b) hereof), each First-Lien Priority Secured Party hereby agrees that the Liens securing each Series of First-Lien Priority Obligations on any Shared Common Collateral shall be of equal priority.

Appears in 3 contracts

Samples: First Lien/First Lien Intercreditor Agreement (ADT, Inc.), First Lien/First Lien Intercreditor Agreement (ADT, Inc.), First Lien Credit Agreement (ADT, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03)notwithstanding, if an Event of Default has occurred and is continuing, and the Applicable a Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company any Borrower or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Secured Party or received by the Applicable a Collateral Agent or any First-Lien Secured Party on account of such enforcement of rights or remedies or received by a Collateral Agent or any Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company Borrowers and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03)whatsoever, each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 3 contracts

Samples: Intercreditor Agreement, Intercreditor Agreement (Elevate Credit, Inc.), Intercreditor Agreement

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company any Pledgor or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each the Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, Document and (ii) SECOND, subject to Section 1.031.01(b), to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series basis in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may directDocuments. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.031.01(b)), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: First Lien Intercreditor Agreement, First Lien Intercreditor Agreement (Community Health Systems Inc)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.03 and the following sentence), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights or remedies in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company or any other Grantor (including any adequate protection payments) or any First-First Lien Secured Party receives any payment or distribution pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-First Lien Secured Party on account of such enforcement rights or remedies or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, proceeds, or payments to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all such payments, distributions, proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds or payments of any such distribution being collectively referred to as “Proceeds”), ) shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) on a ratable basis pursuant to the terms of any the applicable Secured Credit DocumentDocuments, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations of each Series secured by a valid and perfected lien on such Shared Collateral on a ratable basis, with such Proceeds from Shared Collateral to be applied to the First-First Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents; provided that following the commencement of any Insolvency or Liquidation Proceeding with respect to the Company or any other Grantor, solely as among the First Lien Secured Parties and solely for purposes of this clause SECOND and not any Secured Credit Documents, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the First Lien Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of First Lien Obligations of each Series of First Lien Obligations shall include only the maximum amount of Post-Petition Interest on the First Lien Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding; and (iii) THIRD, after payment of all First-First Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. If, despite the provisions of the Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for upon which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-First Lien Secured Party hereby agrees that the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal priority. (d) Notwithstanding anything in this Agreement or any other First Lien Security Documents to the contrary, Collateral consisting of cash and cash equivalents pledged to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of letters of credit or otherwise held by the First Lien Administrative Agent or the Credit Agreement Collateral Agent pursuant to Section 2.05(j), 2.11(b), 2.18(e) or 2.22 of the Credit Agreement (or any equivalent successor provision) shall be applied as specified in the Credit Agreement and will not constitute Shared Collateral.

Appears in 2 contracts

Samples: First Lien Pari Passu Intercreditor Agreement (Sotera Health Co), First Lien Pari Passu Intercreditor Agreement (Sotera Health Topco, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of Holdings, the Company Borrower or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment in full in cash of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full in cash of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment in full in cash of all First-Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. If, despite the provisions of this Section 2.01(a), any Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Obligations to which it is then entitled in accordance with this Section 2.01(a), such Secured Party shall hold such payment or recovery in trust for the benefit of all Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit DocumentsDocuments and subject to Section 2.08, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of filing or recordation of any document or instrument or grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law Applicable Law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: Second Lien Credit Agreement (Grocery Outlet Holding Corp.), First Lien Credit Agreement (Grocery Outlet Holding Corp.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent Controlling Authorized Representative or any First-Lien Priority Secured Party is taking action to enforce rights in respect of any Shared Common Collateral, or any distribution is made in respect of any Shared Common Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-Lien Priority Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Common Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Priority Secured Party or are received by the Applicable Collateral Agent Controlling Authorized Representative or any First-Lien Priority Secured Party pursuant to any such intercreditor agreement with respect to such Shared Common Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Priority Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) by the Controlling Authorized Representative as follows: FIRST, to the payment of all amounts owing to each reasonable fees, costs and expenses incurred by the Controlling Authorized Representative in connection with such collection or sale or otherwise in connection with this Agreement, or any other First-Priority Collateral Agent (Document or any of the First-Priority Obligations, including all court costs and the reasonable fees and expenses of its agents, professional advisors and legal counsel, the repayment of all advances made by the Controlling Authorized Representative hereunder or under any other First-Priority Collateral Document on behalf of the Grantors, if any, and any other reasonable costs or expenses incurred in its capacity as such) pursuant to connection with the terms exercise of any Secured Credit right or remedy hereunder or under any other First-Priority Collateral Document, (ii) ; SECOND, subject to Section 1.03, to the payment of all reasonable fees, costs and expenses incurred by the Authorized Representatives (other than the Authorized Representative that is the Controlling Authorized Representative) in full connection with such collection or sale or otherwise in connection with this Agreement, or any other First-Priority Collateral Document or any of the First-Lien Obligations Priority Obligations, including all court costs and the reasonable fees and expenses of each Series on a ratable basisits agents, with professional advisors and legal counsel, the repayment of all advances made by such Proceeds to be applied to the Authorized Representatives hereunder or under any other First-Lien Obligations Priority Collateral Document on behalf of a given Series the Grantors, if any, and any other reasonable costs or expenses incurred in accordance connection with the terms exercise of the applicable Secured Credit Documents and (iii) THIRD, after payment of all any right or remedy hereunder or under any other First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Priority Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.Document;

Appears in 2 contracts

Samples: Revolving Credit Agreement (CF Industries Holdings, Inc.), First Lien/First Lien Intercreditor Agreement (CF Industries Holdings, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-First Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied by the Applicable Collateral Agent in the following order: (i) FIRST, to the payment of all amounts owing to reasonable costs and expenses incurred by each Collateral Agent (in its capacity as such) pursuant to in connection with such collection or sale or otherwise in connection with this Agreement, any other Secured Credit Documents or any of the terms First Lien Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Secured Credit Document, Documents; (ii) SECOND, subject to Section 1.031.01(b), to the extent Proceeds remain after the application pursuant to preceding clause (i), to the payment in full of the First-First Lien Obligations of each Series on a ratable basis, with such Proceeds (the amounts so applied to be applied to distributed among the First-First Lien Secured Parties pro rata in accordance with the respective amounts of the First Lien Obligations owed to them on the date of a given Series any such distribution and in accordance with the terms of the applicable Secured Credit Documents and Documents); and (iii) THIRD, any balance of such Proceeds remaining after payment of all First-Lien Obligationsthe application pursuant to preceding clauses (i) and (ii), to the Company and the other Grantors or Grantors, their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may otherwise direct. If, despite the provisions of this Section 2.01(a)(ii), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties for distribution in accordance with this Section 2.01(a). (b) Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (bc) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (cd) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.031.01(b)), each First-First Lien Secured Party hereby agrees that the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: Credit Agreement (Dole Food Co Inc), Credit Agreement (Dunkin' Brands Group, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b) of this Agreement), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent Authorized Representative or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-First Lien Secured Party or are received by the Applicable Collateral Agent Authorized Representative or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent any Authorized Representative, as applicable (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.031.01(b), to the payment in full of the First-First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series basis in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, any balance of such Proceeds remaining after payment of all First-Lien Obligationsthe application pursuant to preceding clauses (i) and (ii), to the Company and the other Grantors or Grantors, their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may otherwise direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed applied hereunder in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. If, despite the provisions of this Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties holding a security interest in the Shared Collateral for distribution in accordance with this Section 2.01(a). (b) It is acknowledged The First Lien Secured Parties hereby acknowledge that the First-First Lien Obligations of any Series may, subject to the limitations set forth in this Agreement and the then extant effective Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.031.01(b) and 2.01(a)), each First-First Lien Secured Party hereby agrees that the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal priority. (d) Notwithstanding anything in this Agreement or any other First Lien Security Documents to the contrary, Collateral consisting of cash and cash equivalents pledged to secure General Credit Facilities Obligations consisting of reimbursement obligations in respect of Letters of Credit shall be applied as specified in the General Credit Facilities Credit Agreement and will not constitute Shared Collateral.

Appears in 2 contracts

Samples: Credit Agreement (OUTFRONT Media Inc.), Credit Agreement (Outfront Media Minnesota LLC)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company Borrower or any other Grantor (including any adequate protection payments) or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds or distributions of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) or payment (all payments, distributions, proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution or payment being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts then due and owing to each Collateral Agent (in its capacity as such) secured by such Shared Collateral pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations then due and payable of each Series secured by the Shared Collateral on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents, provided that following the commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor, solely as among the holders of First Lien Obligations and solely for purposes of this clause SECOND and not any Secured Credit Documents, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the First Lien Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of First Lien Obligations of each Series of First Lien Obligations shall include only the maximum amount of Post-Petition Interest on the First Lien Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding and (iii) THIRD, after payment of all First-Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or otherwise, or to whosoever whomever may be lawfully entitled to receive the same, or same as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations Obligations, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. If, despite the provisions of this Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties for distribution in accordance with this Section 2.01(a). (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Collateral Agent, for itself and on behalf of each applicable First Lien Secured Party Party, hereby agrees that (i) the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal prioritypriority and (ii) the benefits and proceeds of the Shared Collateral shall be shared among the First Lien Secured Parties as provided herein.

Appears in 2 contracts

Samples: Senior Secured Revolving Credit Agreement (ORBCOMM Inc.), First Lien Intercreditor Agreement (ORBCOMM Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-First Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to by the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to order specified in Section 1.03, to the payment in full 4.02 of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to Collateral Agreement (or the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may directEquivalent Provision thereof). Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured PartyParty and, without limiting the foregoing, after taking into account the effect of any applicable intercreditor agreements) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: Indenture (Momentive Performance Materials Inc.), Indenture (Momentive Performance Materials Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding, and notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Senior Lien Obligations granted on the Shared Collateral or the existence of any intervening third party Liens and notwithstanding any provisions of the Uniform Commercial Code of any jurisdictions, any applicable real estate laws, or any other circumstance whatsoever (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and (i) the Applicable Collateral Agent Authorized Representative or any First-Senior Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or (ii) any distribution is made in respect of any Shared Collateral in any Bankruptcy Case or other Insolvency or Liquidation Proceeding of the Company any Borrowers or any other Grantor or (iii) any First-Senior Lien Secured Party receives any payment pursuant to any Senior/Junior Intercreditor Agreement or any other intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral (including any amount paid under any title insurance policy or any insurance policy or in connection with any condemnation or eminent domain proceeding) by any First-Senior Lien Secured Party or received by the Applicable Collateral Agent Authorized Representative or any First-Senior Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral (including any amount paid under any title insurance policy) and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-any Senior Lien Obligations Secured Parties are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), ) shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.applied:

Appears in 2 contracts

Samples: Credit Agreement (Herbalife Nutrition Ltd.), Credit Agreement (Herbalife Ltd.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company any Borrower or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by the Controlling Collateral Agent or any First-Lien Secured Party on account of such enforcement of rights or remedies or received by the Applicable Controlling Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after (A) payment in full of all First-Lien Obligations, (B) cancellation of, or entry into arrangements reasonably satisfactory to the Company relevant First Lien L/C Issuer with respect to, all First Lien Letters of Credit and (C) termination or expiration of all commitments to lend and all obligations to issue letters of credit under the Credit Agreement and any Additional First Lien Documents, to the Borrowers and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: Credit Agreement (Bloomin' Brands, Inc.), Credit Agreement (Bloomin' Brands, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit First Lien Debt Documents to the contrary notwithstanding (but subject to Section 1.03)notwithstanding, if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case case of the Company or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-First Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement (other than this Agreement) with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), ) shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit First Lien Debt Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents First Lien Debt Documents, and (iii) THIRD, after payment of all First-First Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: Credit Agreement (Iac/Interactivecorp), Credit Agreement (Match Group, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the any Applicable Collateral Agent or any First-Lien Pari Debt Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution of any cash or other property is made in respect of or on account of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company Borrower or any other Grantor (in each case, whether as a consequence of the exercise of such remedies or as a distribution out of any Insolvency or Liquidation Proceeding including payments in respect of “adequate protection” for the use of Collateral during such proceeding or under any Plan of Reorganization or on account of any liquidation of any Grantor) or any First-Lien Pari Debt Secured Party receives any payment of any cash or other property pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Pari Debt Secured Party or received by the Applicable Collateral Agent or any First-Lien Pari Debt Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such payment or distribution, to the sentence immediately following) to which the First-Lien Pari Debt Obligations are entitled under any intercreditor agreement (other than this Agreement) (all such distributions, payments and all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds or other amount received on account of any such distribution being Collateral, collectively referred to as “Proceeds”), ) shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document (for the avoidance of doubt, including any fees, indemnities and other amounts payable to each Collateral Agent in its capacity as collateral agent or administrative agent under the applicable Secured Credit Document, ); (ii) SECOND, to the payment in full of any Priority Payment Obligations (including any post-petition interest, fees, and expenses with respect thereto, whether or not a claim therefor is allowed or allowable in any Insolvency or Liquidation Proceeding) and with respect to any outstanding letters of credit that, if drawn, would give rise to Priority Payment Obligations, to the cash collateralization thereof, in each case in accordance with the Revolving Credit Agreement; (iii) THIRD, after payment of all the Priority Payment Obligations (if applicable) and subject to Section 1.03, to the payment in full of fees, indemnities and other amounts (other than principal, interest and obligations arising under Swap Agreements but including Cash Management Obligations) payable to the Pari Debt Secured Parties (in their capacities as such) (including attorney costs payable under the terms of any Pari Debt Documents and amounts payable under Article III of the Term Loan Credit Agreement or under any similar provisions relating to yield protection or capital adequacy under any Additional Pari Debt Documents), ratably among them in proportion to the amounts described in this clause Third payable to them (irrespective of when such amounts were incurred or accrued or whether any such amounts are allowed or allowable in any Insolvency or Liquidation Proceeding); (iv) FOURTH, after payment of all the Priority Payment Obligations (if applicable) and subject to Section 1.03, to the payment in full of accrued interest on all other Pari Debt Obligations of each Series (other than any obligations arising under Swap Agreements) on a ratable basis (irrespective of when such amounts were incurred or accrued or whether any such amounts are allowed or allowable in any Insolvency or Liquidation Proceeding); (v) FIFTH, after payment of all the Priority Payment Obligations (if applicable) and all interest described in clause Fourth, subject to Section 1.03, to the payment in full of the First-Lien all other Pari Debt Obligations of each Series constituting principal and obligations arising under Swap Obligations on a ratable basisbasis as among the different Series of Pari Debt Obligations, with such Proceeds to be applied to the First-Lien Pari Debt Obligations of a given Series in accordance with the terms of (and pursuant to such priority rules as may be specified in) the applicable Secured Credit Documents Documents; and (iiivi) THIRDSIXTH, after payment of all First-Lien the Priority Payment Obligations (if applicable) and all interest described in clause Fourth and all payments described under clause Fifth, subject to Section 1.03, to the payment of all other Pari Debt Obligations payable under the terms of any Pari Debt Documents (and with respect to any outstanding letters of credit not subject to clause Second above, to the cash collateralization thereof pursuant to the terms of each applicable Secured Credit Document, but in any event, not in excess of 103% of the undrawn amount); and (vii) SEVENTH, after payment of all Pari Debt Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct; provided that (x) if any Proceeds are not in the form of cash, then the amount of such securities or other property applied to each of clauses First through Sixth above shall be an amount with a fair market value equal to the stated amount required to be applied pursuant to each such clause and (y) if any letter of credit for which cash collateral has been provided pursuant to clause Second or clause Fifth expires without such cash collateral being applied to reimburse drawings thereunder, the amount of such remaining cash collateral for such letter of credit shall be turned over to the Applicable Collateral Agent for distribution in the order set forth in clauses First through Sixth above. Notwithstanding the foregoing, with respect to any Shared Collateral for upon which a third party (other than a First-Lien Pari Debt Secured Party) has a lien or security interest that is junior in priority to the security interest of the Priority Payment Obligations or any Series of First-Lien Pari Debt Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Pari Debt Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Pari Debt Obligations with respect to which such Impairment existsexists (other than the Priority Payment Obligations). (b) It is acknowledged that the First-Lien Pari Debt Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Pari Debt Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Pari Debt Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, any applicable real estate laws, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Pari Debt Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03, Section 2.01(a), Section 2.02(a) and Section 2.02(d)), each First-Lien Pari Debt Secured Party hereby agrees that the Liens securing each Series of First-Lien Pari Debt Obligations on any Shared Collateral shall be of equal priority. (d) Notwithstanding anything in this Agreement or any other Pari Debt Documents to the contrary, Collateral consisting of cash and cash equivalents pledged to secure Revolving Credit Agreement Debt held by the Revolving Credit Agreement Agent pursuant to Section 2.03(f) of the Revolving Credit Agreement (or any equivalent successor provision) shall be applied as specified in the Revolving Credit Agreement and will not constitute Shared Collateral.

Appears in 2 contracts

Samples: Revolving Credit Agreement (IASIS Healthcare LLC), Amended and Restated Credit Agreement (IASIS Healthcare LLC)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights or remedies in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company Borrower or any other Grantor (including any adequate protection payments) or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party on account of such enforcement rights or remedies or received by the Applicable Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, proceeds, or payment, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all payments, distributions, proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds or payments of any such distribution being collectively referred to as “Proceeds”), ) shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) on a ratable basis pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents, provided that following the commencement of any Insolvency or Liquidation Proceeding with respect to the Borrower or any other Grantor, solely as among the Secured Parties and solely for purposes of this clause SECOND and not any Secured Credit Documents, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the Obligations, to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of Obligations of each Series of Obligations shall include only the maximum amount of Post-Petition Interest on the Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, and (iii) THIRD, after payment of all First-Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. If, despite the provisions of the Section 2.01(a), any Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Obligations to which it is then entitled in accordance with this Section 2.01(a), such Secured Party shall hold such payment or recovery in trust for the benefit of all Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for upon which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority. (d) Notwithstanding anything in this Agreement or any other Security Documents to the contrary, Collateral consisting of cash and cash equivalents pledged to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of Letters of Credit or otherwise held by the Administrative Agent or the Credit Agreement Collateral Agent pursuant to Section 1.08(b). 2.03(a)(ii)(E), 2.03(c)(vii), 2.03(f), 2.05(b)(vii), 2.05(c), 2.13, 2.16(c), 2.16(d), 3.06(c), 8.02(c) or 8.04 of the Credit Agreement (or any equivalent successor provision) shall be applied as specified in the Credit Agreement and will not constitute Shared Collateral.

Appears in 2 contracts

Samples: Credit Agreement (Wyndham Destinations, Inc.), Credit Agreement (Wyndham Destinations, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit First-Lien Revolving Facility Documents, First-Lien Note Documents or Other First-Priority Lien Obligations Documents to the contrary notwithstanding (but subject to Section 1.03)notwithstanding, if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any Authorized First-Lien Secured Party Collateral Agent is taking action to enforce rights in respect of any Shared CollateralCollateral (whether in an Insolvency or Liquidation Proceeding or otherwise), or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company Insolvency or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) Liquidation Proceeding with respect to any Shared CollateralGrantor, the proceeds of any sale, collection or other liquidation of any such Collateral by any the Authorized First-Lien Secured Party Collateral Agent or received by the Applicable Collateral Agent or any Authorized First-Lien Secured Party Collateral Agent pursuant to the Senior Lien Intercreditor Agreement as a result of any such intercreditor agreement with respect to such Shared action by the Applicable Collateral Agent, as applicable, and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence paragraph immediately following) to which the First-Priority Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) the Senior Lien Intercreditor Agreement (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied applied, after payment of any amounts owing to the Collateral Agents party hereto, among the First-Priority Lien Obligations as follows: (i) FIRST, to In the payment case of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03Shared Perfected Collateral, to the payment in full of the First-Priority Lien Obligations of each Series on a ratable basis; and (ii) In the case of Shared Collateral other than Shared Perfected Collateral, with such Proceeds FIRST to be applied to the each Representative of each Series of holders of First-Priority Lien Obligations that has at any time held a perfected security interest in such Shared Collateral which security interest is not subject to avoidance as a preference under the Bankruptcy Code, until each such Series of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Priority Lien ObligationsObligations has been paid in full and, in the case of more than one Series, on a ratable basis; and SECOND to the Company and the each Representative of any other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as Series of holders of First-Priority Lien Obligations for whom such Collateral constitutes Shared Collateral on a court of competent jurisdiction may directratable basis until each such Series has been paid in full. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Priority Lien Obligations Secured PartyParty or the holders of ABL Obligations) has a lien or security interest Lien that is junior in priority to the security interest Lien of any Series of First-Priority Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest Lien of any other Series of First-Priority Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the such other Series of First-Priority Lien Obligations. In addition, nothing herein shall be construed to require any First-Lien Collateral Agent to share the proceeds of any Collateral with any Secured Party of any Series of First-Priority Lien Obligations with respect for which the holders of such Series of First-Priority Lien Obligations (or their First-Lien Collateral Agent) has not been granted a valid security interest to which such Impairment existssecure the respective Series of First-Priority Lien Obligations. (b) It is acknowledged that the First-Priority Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured First-Lien Revolving Facility, the Indenture and any Other First-Priority Lien Obligations Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Revolving Facility Secured Parties, the First-Lien Note Secured Parties and the Other First-Priority Lien Obligations Secured Parties. The priorities provided for herein shall not be altered or otherwise affected by the release of any SeriesShared Collateral or of any guarantees for any First-Priority Lien Obligations or by any action that any First-Lien Collateral Agent or First-Priority Lien Obligations Secured Party may take or fail to take in respect of any Shared Collateral, after obtaining a perfected security interest therein. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the First-Lien Revolving Facility Obligations, the First-Lien Note Obligations and any Series of Other First-Priority Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit First-Lien Revolving Facility Documents, First-Lien Note Documents, or Other First-Priority Lien Obligations Documents or any defect or deficiencies in (other than a failure to obtain a perfected security interest therein, it being understood that a failure to maintain a perfected security interest shall not affect the priorities provided for in Section 2.01(a)) the Liens securing the First-Lien Revolving Facility Obligations, the First-Lien Note Obligations or each Series of any Series Other First-Priority Lien Obligations or any other circumstance whatsoever (butwhatsoever, in each case, subject to Section 1.03), each the First-Lien Revolving Facility Collateral Agent, on behalf of itself and the First-Lien Revolving Facility Secured Party Parties, the Notes Collateral Agent, on behalf of itself and the First-Lien Note Secured Parties and each Other First-Priority Lien Obligations Collateral Agent, on behalf of itself and the applicable Other First-Priority Lien Obligations Secured Parties, each hereby agrees that the Liens securing each Series of the First-Lien Revolving Facility Collateral Agent, the Notes Collateral Agent and each Other First-Priority Lien Obligations Collateral Agent on any Shared Collateral shall be of equal priority. (d) For the avoidance of doubt, to the extent that as a result of any provision of this Agreement, Rule 3-16 of Regulation S-X under the Securities Act (or any successor or similar regulation) would require the filing with the SEC of separate financial statements of any of the Company’s subsidiaries because such subsidiary’s capital stock or other securities would be deemed to secure the First-Lien Notes or any Other First-Priority Lien Obligations, then such provision shall be void and have no effect, but only to the extent necessary to not be subject to such requirement and only for so long as such requirement is in existence.

Appears in 2 contracts

Samples: First Priority Intercreditor Agreement (Verso Quinnesec REP Holding Inc.), Indenture (Verso Paper Corp.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights or remedies in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-Lien Secured Party receives any payment pursuant to the ABL Intercreditor Agreement or any other intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party on account of such enforcement rights or remedies or received by the Applicable Collateral Agent or any First-Lien Secured Party pursuant to such ABL Intercreditor Agreement or any other such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution or payment (subject, in the case of any such distribution, payment or proceeds to the sentence immediately following) to which the First-Lien Obligations are entitled under the ABL Intercreditor Agreement or any other intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), ) shall be applied applied, subject to the ABL Intercreditor Agreement, (i) FIRST, to the payment of all amounts owing to each Collateral Agent and each Authorized Representative (in its capacity as such) on a ratable basis pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents; provided, that following the commencement of any Insolvency or Liquidation Proceeding with respect to the Borrower or any other Grantor, solely for purposes of this Section 2.01(a) and not any other documents governing Obligations, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of Obligations of each Series of Obligations shall include only the maximum amount of Post-Petition Interest allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceedings; and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. If, despite the provisions of the Section 2.01(a), any Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Obligations to which it is then entitled in accordance with this Section 2.01(a), such Secured Party shall hold such payment or recovery in trust for the benefit of all Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for upon which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority. (d) Notwithstanding anything in this Agreement or any other Security Documents to the contrary, Collateral consisting of cash and cash equivalents pledged to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of Letters of Credit or otherwise held by the Administrative Agent or the Credit Agreement Collateral Agent pursuant to Section 1.08(b), 2.03(f), 2.12(g) or 2.16 of the Credit Agreement (or any equivalent successor provision) shall be applied as specified in the Credit Agreement and will not constitute Shared Collateral.

Appears in 2 contracts

Samples: First Lien Intercreditor Agreement (Clear Channel Outdoor Holdings, Inc.), First Lien Intercreditor Agreement

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Fixed Assets Documents to the contrary notwithstanding (but subject to Section 1.03Sections 2.1(b) and 5.19), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-Lien Secured Party Fixed Assets Claimholder receives any payment pursuant to any intercreditor agreement (other than this Agreement) or otherwise with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral or Equity Release Proceeds received by any First-Lien Secured Party Fixed Assets Claimholder or received by the Applicable Collateral Agent or any First-Lien Secured Party Fixed Assets Claimholder pursuant to any such intercreditor agreement or otherwise with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately followingfollowing clause THIRD below) to which the First-Lien Fixed Assets Obligations are entitled under any intercreditor agreement (other than this Agreement) or otherwise (all proceeds of any sale, collection or other liquidation of any Collateral comprising either Shared Collateral or Equity Release Proceeds and all proceeds of any such distribution and any proceeds of any insurance covering the Shared Collateral received by the Applicable Collateral Agent and not returned to any Grantor under any Fixed Assets Document being collectively referred to as “Proceeds”), shall be applied by the Applicable Collateral Agent in the following order: (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) and each Representative (in its capacity as such) secured by such Shared Collateral or, in the case of Equity Release Proceeds, secured by the Underlying Assets, including all reasonable costs and expenses incurred by each Collateral Agent (in its capacity as such) and each Representative (in its capacity as such) in connection with such collection or sale or otherwise in connection with this Agreement, any other Fixed Assets Document or any of the Fixed Assets Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Fixed Assets Document and all fees and indemnities owing to such Collateral Agents and Representatives, ratably to each such Collateral Agent and Representative in accordance with the amounts payable to it pursuant to the terms of any Secured Credit Document, this clause FIRST; (ii) SECOND, subject to Section 1.03Sections 2.1(b) and 5.19, to the extent Proceeds remain after the application pursuant to preceding clause (i), to each Representative for the payment in full of the First-Lien other Fixed Assets Obligations of each Series on a ratable basissecured by such Shared Collateral or, with in the case of Equity Release Proceeds, secured by the Underlying Assets, and, if the amount of such Proceeds are insufficient to pay in full the Fixed Assets Obligations of each Series so secured then such Proceeds shall be applied allocated among the Representatives of each Series secured by such Shared Collateral or, in the case of Equity Release Proceeds, secured by the Underlying Assets, pro rata according to the First-Lien amounts of such Fixed Assets Obligations of a given Series owing to each such respective Representative and the other Fixed Assets Claimholders represented by it for distribution by such Representative in accordance with the terms of the applicable Secured Credit Documents and its respective Fixed Assets Documents; and (iii) THIRD, any balance of such Proceeds remaining after payment of all First-Lien Obligationsthe application pursuant to preceding clauses (i) and (ii), to the Company and the other Grantors or Grantors, their successors or assigns, as their interests may appearassigns from time to time, or to whosoever whomever may be lawfully entitled to receive the same, including pursuant to any ABL Intercreditor Agreement, if applicable. If, despite the provisions of this Section 2.1(a), any Fixed Assets Claimholder shall receive any payment or as a court other recovery in excess of competent jurisdiction may direct. its portion of payments on account of the Fixed Assets Obligations to which it is then entitled in accordance with this Section 2.1(a), such Fixed Assets Claimholder shall hold such payment or recovery in trust for the benefit of all Fixed Assets Claimholders for distribution in accordance with this Section 2.1(a). (b) (i) Notwithstanding the foregoing, with respect to any Shared Collateral or Equity Release Proceeds for which a third party (other than a First-Lien Secured PartyFixed Assets Claimholder) has a lien or security interest Lien that is junior in priority to the security interest Lien of any Series of First-Lien Fixed Assets Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest Lien of any other Series of First-Lien Fixed Assets Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral Collateral, Equity Release Proceeds or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral Collateral, Equity Release Proceeds or Proceeds to be distributed in respect of the Series of First-Lien Fixed Assets Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: Term Loan Credit Agreement, Term Loan Credit Agreement (Staples Inc)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-First Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to by the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to order specified in Section 1.03, to the payment in full 4.02 of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to Collateral Agreement (or the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may directEquivalent Provision thereof). Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured PartyParty and, without limiting the foregoing, after taking into account the effect of any applicable intercreditor agreements) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.031.01(b) hereof), each First-First Lien Secured Party hereby agrees that the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: Credit Agreement (Momentive Performance Materials Inc.), First Lien Intercreditor Agreement (Momentive Performance Materials Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Intercreditor Agent or any First-Lien Priority Secured Party is taking action to enforce rights in respect of any Shared Common Collateral, or any distribution is made in respect of any Shared Common Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-Lien Priority Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Common Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Priority Secured Party or received by the Applicable Collateral Intercreditor Agent or any First-Lien Priority Secured Party pursuant to any such intercreditor agreement with respect to such Shared Common Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Priority Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) by the Intercreditor Agent in the order specified below: FIRST, to the payment of all amounts owing to each Collateral costs and expenses incurred by the Intercreditor Agent (and any other Authorized Representative in connection with such collection or sale or otherwise in connection with this Agreement, any Secured Credit Document or any of the First-Priority Obligations, including without limitation all court costs and the fees and expenses of its capacity as such) pursuant to agents and legal counsel, the terms repayment of all advances made by the Intercreditor Agent or the relevant Authorized Representatives hereunder or under any Secured Credit Document on behalf of any Grantor, any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Secured Credit Document, (ii) and all other fees, indemnities and other amounts owing or reimbursable to the Intercreditor Agent or any other Authorized Representative hereunder or under any Secured Credit Document; SECOND, subject to Section 1.03, to the payment Authorized Representatives for each Series of First-Priority Obligations on a pro rata basis in full accordance with the respective amounts of the First-Lien Priority Obligations of each Series on a ratable basis, with such Proceeds to be applied owed to the First-Lien Obligations Priority Secured Parties of a given each such Series in accordance on the date of any such distribution (with the terms of amounts so applied to each Series to be distributed by the Authorized Representative for such Series as specified in the applicable Secured Credit Documents and (iiifor such Series) THIRD, after payment until the Discharge of all each Series of First-Lien ObligationsPriority Obligations has occurred; and THIRD, to the Company and the other Grantors or Grantors, their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may otherwise direct. If, despite the provisions of this Section 2.01(a), any First-Priority Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First-Priority Obligations to which it is then entitled in accordance with this Section 2.01(a), such First-Priority Secured Party shall hold such payment or recovery in trust for the benefit of all First-Priority Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Common Collateral for which a third party (other than a First-Lien Priority Secured PartyParty and, without limiting the foregoing, after taking into account the effect of any applicable intercreditor agreements) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Priority Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Priority Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Common Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Common Collateral or Proceeds to be distributed in respect of the Series of First-Lien Priority Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Priority Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Priority Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Priority Obligations granted on the Shared Common Collateral and notwithstanding any provision of the Uniform Commercial Code or PPSA of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Priority Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.031.01(b) hereof), each First-Lien Priority Secured Party hereby agrees that the Liens securing each Series of First-Lien Priority Obligations on any Shared Common Collateral shall be of equal priority.

Appears in 2 contracts

Samples: Credit Agreement (Open Text Corp), Credit Agreement (Open Text Corp)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company Borrower or any other Grantor (including any adequate protection payments) or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by the Controlling Collateral Agent or any First-other First Lien Secured Party on account of such enforcement of rights or remedies or distribution in respect thereof in any Insolvency or Liquidation Proceeding (including any adequate protection payments) or received by the Applicable Controlling Collateral Agent or any First-other First Lien Secured Party pursuant to any such intercreditor agreement (other than this Agreement) with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such proceeds, payments or distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) ), including any First Lien/Second Lien Intercreditor Agreement (all distributions, payments, and proceeds of any sale, collection or other liquidation of any Shared Collateral and all payments and proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment in full in cash of all amounts owing to each Collateral Agent (in its capacity as suchsuch and, in the case of the First Lien Credit Agreement Collateral Agent, in its capacity as First Lien Credit Agreement Administrative Agent) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full in cash of the First-First Lien Obligations of each Series secured by a valid and perfected security interest in such Shared Collateral on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents; provided that following the commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor, solely as among the holders of First Lien Obligations and solely for purposes of this clause SECOND and not any other documents governing First Lien Obligations, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the First Lien Obligations secured by a valid and perfected security interest in such Shared Collateral to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of First Lien Obligations of each Series of First Lien Obligations shall include only the maximum amount of Post-Petition Interest on the First Lien Obligations secured by a valid and perfected security interest in such Shared Collateral allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding; and (iii) THIRD, THIRD after payment Discharge of all First-First Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. If, despite the provisions of this Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties in accordance with Section 2.03(b) for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.), Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-First Lien Secured Party receives any payment other than pursuant to any intercreditor agreement (other than this Agreement) Agreement with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-First Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral other than pursuant to this Agreement and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than pursuant to this Agreement) Agreement (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each the Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, Document and (ii) SECOND, subject to Section 1.031.01(b), to the payment in full of the First-First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series basis in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment existsDocuments. (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.031.01(b)), each First-First Lien Secured Party hereby agrees that the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: First Lien Intercreditor Agreement, First Lien Intercreditor Agreement (Nielsen CO B.V.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party Authorized Representative is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) or payment (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution or payment being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment the Discharge of all First-First Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the sameotherwise, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations Obligations, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. If, despite the provisions of this Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties for distribution in accordance with this Section 2.01(a). (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, jurisdiction or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Collateral Agent, for itself and on behalf of each applicable First Lien Secured Party Party, hereby agrees that (i) the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal prioritypriority and (ii) the benefits and proceeds of the Shared Collateral shall be shared among the First Lien Secured Parties as provided herein.

Appears in 2 contracts

Samples: First Lien Intercreditor Agreement (Cco Holdings LLC), First Lien Intercreditor Agreement (Cco Holdings LLC)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit First Lien Documents to the contrary notwithstanding (but subject to Section 1.03Sections 2.1(b) and 2.11(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-First Lien Secured Party Claimholder receives any payment pursuant to any intercreditor agreement (other than this Agreement) or otherwise with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral or Equity Release Proceeds received by any First-First Lien Secured Party Claimholder or received by the Applicable Collateral Agent or any First-First Lien Secured Party Claimholder pursuant to any such intercreditor agreement or otherwise with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately followingfollowing clause THIRD below) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) or otherwise (all proceeds of any sale, collection or other liquidation of any Collateral comprising either Shared Collateral or Equity Release Proceeds and all proceeds of any such distribution and any proceeds of any insurance covering the Shared Collateral received by the Applicable Collateral Agent and not returned to any Grantor under any First Lien Document being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to by the payment of all amounts owing to each Applicable Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.following order:

Appears in 2 contracts

Samples: Credit Agreement (Enviva Partners, LP), Credit Agreement (Enviva Partners, LP)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-Lien Pari Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company a Borrower or any other Grantor or any First-Lien Pari Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Pari Secured Party or received by the Applicable Controlling Collateral Agent or any First-Lien Pari Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Pari Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds any payment or distribution made in respect of Shared Collateral pursuant to any such distribution intercreditor agreement or in an Insolvency or Liquidation Proceeding being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Pari Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Pari Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Pari Obligations, to the Company a Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. If, despite the provisions of this Section 2.01(a), any Pari Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Pari Obligations to which it is then entitled in accordance with this Section 2.01(a), such Pari Secured Party shall hold such payment or recovery in trust for the benefit of all Pari Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Pari Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Pari Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Pari Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Pari Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Pari Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Pari Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Pari Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Pari Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Pari Secured Party hereby agrees that the Liens securing each Series of First-Lien Pari Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: Credit Agreement (Canada Goose Holdings Inc.), Credit Agreement (Canada Goose Holdings Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b) of this Agreement), if an Event of Default has occurred and is continuing, and the Applicable Authorized Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Common Collateral, or any distribution is made in respect of any Shared Common Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Common Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-First Lien Secured Party or received by the Applicable Term Loan Collateral Agent, the Notes Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Common Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) as follows: FIRST, to the payment of all amounts owing to each reasonable costs and expenses incurred by the Collateral Agent (Agents, any Authorized Representative or Other Agents in its capacity connection with such collection or sale or otherwise in connection with this Agreement, or any other First Lien Security Document or any of the First Lien Obligations, including all court costs and the reasonable fees and expenses of their agents and legal counsel, the repayment of all advances made by the Collateral Agents, any Authorized Representative or Other Agents, as such) pursuant to applicable, hereunder or under any other First Lien Security Document on behalf of Grantors and any other reasonable costs or expenses incurred in connection with the terms exercise of any Secured Credit right or remedy hereunder or under any other First Lien Security Document, (ii) ; SECOND, subject to Section 1.031.01(b), to the payment in full of the First-all other First Lien Obligations of each Series on a ratable basis, with such Proceeds (the amounts so applied to be applied to distributed pro rata among the First-First Lien Obligations of a given Series Secured Parties in accordance with the terms amounts of the applicable Secured Credit Documents First Lien Obligations owed to them on the date of any such distribution); and (iii) THIRD, after payment in full of all First-First Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may otherwise direct. Notwithstanding the foregoing, with respect to any Shared Common Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Common Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Common Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged The First Lien Secured Parties hereby acknowledge that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Common Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.031.01(b)), each First-First Lien Secured Party hereby agrees that the Liens securing each Series of First-First Lien Obligations on any Shared Common Collateral shall be of equal priority.

Appears in 2 contracts

Samples: First Lien Intercreditor Agreement, First Lien Intercreditor Agreement (Toys R Us Inc)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-Lien Secured Party is taking action to enforce rights or remedies in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company any Obligor (including an adequate protection payments) or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this AgreementAgreement but including the Other Intercreditor Agreements) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party the Controlling Collateral Agent or received by the Applicable Controlling Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, proceeds, or payments to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this AgreementAgreement but including the Other Intercreditor Agreements) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and any payment or distribution made in respect of Shared Collateral pursuant to any intercreditor agreement (including the Other Intercreditor Agreements) or in an Insolvency or Liquidation Proceeding and all proceeds of any “proceeds” (as such distribution term in defined in the New York UCC being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the FirstFirst Lien Priority Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First Lien Priority Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents, provided that following the commencement of any Insolvency or Liquidation Proceeding of any Obligor, solely as among the First Lien Secured Parties and solely for purposes of this clause SECOND and not any Secured Credit Documents, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the First Lien Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of First Lien Obligations of each Series of First Lien Obligations shall include only the maximum amount of Post-Petition Interest on the First Lien Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, (iii) THIRD, to the payment in full of all Excess First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations of a given Series constituting Excess First Lien Obligations in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRDFOURTH, after payment of all First-First Lien Obligations, to the Company and the other Grantors Obligors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the samesame pursuant to the Second Lien Intercreditor Agreement, if in effect, or otherwise, as a court of competent jurisdiction may direct. If, despite the provisions of this Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations Obligations, after giving effect to the Second Lien Intercreditor Agreement, if applicable, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing or purporting to secure any Series of First-First Lien Priority Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Priority Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-First Lien Secured Party hereby agrees that the Liens securing or purporting to secure each Series of First-First Lien Priority Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: First Lien Intercreditor Agreement (DISH Network CORP), Indenture Agreement (DISH Network CORP)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company any Borrower or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement, but including the First Lien/Second Lien Intercreditor Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment the Discharge of all First-First Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the samesame pursuant to the First Lien/Second Lien Intercreditor Agreement, if in effect, or otherwise, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations Obligations, after giving effect to the First Lien/Second Lien Intercreditor Agreement, if applicable, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. If, despite the provisions of this Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties for distribution in accordance with this Section 2.01(a). (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-First Lien Secured Party hereby agrees that (i) the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal prioritypriority and (ii) the benefits and proceeds of the Shared Collateral shall be shared among the First Lien Secured Parties as provided herein. (d) Notwithstanding anything in this Agreement or any other First Lien Security Documents to the contrary, Collateral consisting of cash and cash equivalents pledged to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of Letters of Credit or otherwise held by the Administrative Agent or the Collateral Agent pursuant to Section 2.05(j), 2.11(b) or 2.22(a)(iv) of the Credit Agreement (or any equivalent successor provision) shall be applied as specified in such Section of the Credit Agreement and will not constitute Shared Collateral.

Appears in 2 contracts

Samples: First Lien Credit Agreement (Endeavor Group Holdings, Inc.), First Lien Credit Agreement (Endeavor Group Holdings, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company Borrower or any other Grantor or any First-Second Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this AgreementAgreement but including the Other Intercreditor Agreements) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party the Controlling Collateral Agent or received by the Applicable Controlling Collateral Agent or any First-Second Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Second Lien Obligations are entitled under any intercreditor agreement (other than this AgreementAgreement but including the Other Intercreditor Agreements) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds any payment or distribution made in respect of Shared Collateral pursuant to any such distribution intercreditor agreement (including the Other Intercreditor Agreements) or in an Insolvency or Liquidation Proceeding being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Second Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Second Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Second Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the samesame pursuant to the Second Lien Intercreditor Agreement, if in effect, or otherwise, as a court of competent jurisdiction may direct. If, despite the provisions of this Section 2.01(a), any Second Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Second Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such Second Lien Secured Party shall hold such payment or recovery in trust for the benefit of all Second Lien Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Second Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Second Lien Obligations Obligations, after giving effect to the Second Lien Intercreditor Agreement, if applicable, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Second Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Second Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Second Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Second Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Second Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Second Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Second Lien Secured Party hereby agrees that the Liens securing each Series of First-Second Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: Second Lien Credit Agreement (Focus Financial Partners Inc.), Second Lien Credit Agreement (Focus Financial Partners Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company Borrower or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this AgreementAgreement but including the Other Intercreditor Agreements) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party the Controlling Collateral Agent or received by the Applicable Controlling Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this AgreementAgreement but including the Other Intercreditor Agreements) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds any payment or distribution made in respect of Shared Collateral pursuant to any such distribution intercreditor agreement (including the Other Intercreditor Agreements) or in an Insolvency or Liquidation Proceeding being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-First Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the samesame pursuant to the Second Lien Intercreditor Agreement, if in effect, or otherwise, as a court of competent jurisdiction may direct. If, despite the provisions of this Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations Obligations, after giving effect to the Second Lien Intercreditor Agreement, if applicable, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: First Lien Credit Agreement (Focus Financial Partners Inc.), First Lien Credit Agreement (Focus Financial Partners Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect or on account of any Shared Collateral in any Bankruptcy Case of the Company any Pledgor or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Secured Party or received by the Applicable Controlling Collateral Agent or any First-Lien Secured Party whether or not pursuant to any such intercreditor agreement with respect to or on account of such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent and Authorized Representative (in its capacity as such) pursuant to the terms of any Secured Credit Document, Document and (ii) SECOND, subject to Section 1.031.01(b), to the payment in full of the First-Lien Obligations (other than Cash Collateralized Obligations) of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series basis in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRDDocuments. If, after despite the provisions of this Section 2.01(a), any Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Obligations to which it is then entitled in accordance with this Section 2.01(a), such Secured Party shall hold such payment or recovery in trust for the benefit of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may directSecured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: Credit Agreement (Altice USA, Inc.), Credit Agreement (CSC Holdings LLC)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Xxxx Xxxx Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-Lien Xxxx Xxxx Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Xxxx Xxxx Secured Party or received by the Applicable Collateral Agent or any First-Lien Xxxx Xxxx Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Xxxx Xxxx Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Xxxx Xxxx Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Xxxx Xxxx Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Xxxx Xxxx Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Xxxx Xxxx Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Xxxx Xxxx Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Xxxx Xxxx Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Xxxx Xxxx Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Xxxx Xxxx Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Xxxx Xxxx Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Xxxx Xxxx Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Xxxx Xxxx Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Xxxx Xxxx Secured Party hereby agrees that the Liens securing each Series of First-Lien Xxxx Xxxx Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: Credit Agreement, Credit Agreement (TMS International Corp.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Senior Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default (under and as defined in the Senior Credit Documents under which the Designated Collateral Agent is the Senior Representative) has occurred and is continuing, and the Applicable Designated Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-Lien Senior Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral all Proceeds received by any First-Lien Senior Secured Party or received by the Applicable Designated Collateral Agent or any First-Lien Senior Secured Party pursuant to any such intercreditor agreement with respect to such any Shared Collateral and proceeds Proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are any Senior Secured Party is entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied by the Designated Collateral Agent by payment to each Collateral Agent for its respective Senior Obligations, in the following order: (i) FIRST, to the payment of all amounts owing to reasonable fees, costs and expenses incurred by each Collateral Agent (in its capacity as such) pursuant in connection with such collection or sale or otherwise in connection with this Agreement, any other Senior Credit Documents or any of the Senior Obligations, including all court costs and the reasonable fees, costs and expenses of its agents, professional advisors and legal counsel, and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Senior Credit Documents, in each case owed to such Collateral Agent in accordance with the terms of the applicable Senior Credit Documents (the amounts so applied to be distributed among the Collateral Agents pro rata in accordance with the respective amounts of the Senior Obligations owed to them and described in this clause FIRST on the date of any Secured such distribution and in accordance with the terms of the applicable Senior Credit Document, Documents); (ii) SECOND, subject to Section 1.031.01(b), to the extent Proceeds remain after the application pursuant to preceding clause (i), to payment in full of that portion of the First-Lien Senior Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Senior Secured Parties, including all court costs and the reasonable fees, costs and expenses of their respective agents, professional advisors and legal counsel, breakage costs, tax indemnities, increased costs and similar amounts, in each Series on a ratable basis, case to the extent payable in accordance with such Proceeds the applicable Senior Credit Documents (the amounts so applied to be applied distributed among the Senior Secured Parties pro rata in accordance with the respective amounts of the Senior Obligations owed to them and described in this clause SECOND on the First-Lien Obligations date of a given Series any such distribution and in accordance with the terms of the applicable Secured Senior Credit Documents and Documents); (iii) THIRD, after payment of all First-Lien Obligationssubject to Section 1.01(b), to the Company extent Proceeds remain after the application pursuant to preceding clause (ii), to payment of that portion of the Senior Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans and Unpaid Drawings in connection with any Superpriority Commitments (the amounts so applied to be distributed among the Senior Secured Parties pro rata in accordance with the respective amounts of the Senior Obligations owed to them and described in this clause THIRD on the date of any such distribution and in accordance with the terms of the applicable Senior Credit Documents); (iv) FOURTH, subject to Section 1.01(b), to the extent Proceeds remain after the application pursuant to preceding clause (iii), to payment of that portion of the Senior Obligations constituting unpaid principal of the Superpriority Loans (the amounts so applied to be distributed among the Senior Secured Parties pro rata in accordance with the respective amounts of the Senior Obligations owed to them and described in this clause FOURTH on the date of any such distribution and in accordance with the terms of the applicable Senior Credit Documents); (v) FIFTH, subject to Section 1.01(b), to the extent Proceeds remain after the application pursuant to preceding clause (iv), to payment of that portion of the Senior Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Senior Obligations (the amounts so applied to be distributed among the Senior Secured Parties pro rata in accordance with the respective amounts of the Senior Obligations owed to them and described in this clause FIFTH on the date of any such distribution and in accordance with the terms of the applicable Senior Credit Documents); (vi) SIXTH, subject to Section 1.01(b), to the extent Proceeds remain after the application pursuant to preceding clause (v), (A) to payment of that portion of the Senior Obligations constituting (I) unpaid principal amount of Loans (other Grantors than Superpriority Loans) and unpaid principal of Pari Debt and (II) Senior Obligations then owing under Secured Hedge Agreements and Secured Cash Management Agreements and (B) to Cash Collateralize that portion of Letters of Credit Outstanding comprising the aggregate undrawn amount of Letters of Credit (the amounts so applied to be distributed among the Senior Secured Parties pro rata in accordance with the respective amounts of the Senior Obligations owed to them and described in this clause SIXTH on the date of any such distribution and in accordance with the terms of the applicable Senior Credit Documents); provided that (x) any such amounts applied pursuant to the foregoing clause (B) shall be paid to the Designated Senior Representative for the ratable account of the applicable Issuing Bank to Cash Collateralize such Letters of Credit Outstanding, (y) subject to the relevant Senior Credit Documents, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to this clause SIXTH shall be applied to satisfy drawings under such Letters of Credit as they occur and (z) upon the expiration of any Letter of Credit, the pro rata share of Cash Collateral attributable to such expired Letter of Credit shall be distributed in accordance with this clause SIXTH; (vii) SEVENTH, subject to Section 1.01(b), to the extent Proceeds remain after the application pursuant to preceding clause (vi), to the payment in full of all other Senior Obligations of each Series (the amounts so applied to be distributed among the Senior Secured Parties pro rata in accordance with the respective amounts of the Senior Obligations owed to them on the date of any such distribution and in accordance with the terms of the applicable Senior Credit Documents); provided that with respect to any Senior Obligations which are Contingent Obligations, payment shall be made to the Collateral Agent for the holder of such Contingent Obligation, to be retained as collateral, for the ratable portion of Senior Obligations consisting of such Contingent Obligations (it being understood that (i) if any portion of such Contingent Obligations become due and payable, the Collateral Agent shall pay to the holder of such Contingent Obligations the ratable share of the amount of cash held as collateral specifically therefor pursuant to this clause which is allocable to such portion of such Contingent Obligations and (ii) if, and to the extent that, any Contingent Obligation ceases to exist (as the result of the expiration or termination of the Contingent Obligation or the disallowance of any claim for such Contingent Obligation), the amount of cash held as collateral therefor pursuant to this clause shall be returned to the Designated Collateral Agent for ratable distribution to respective Collateral Agents for the benefit of the Senior Secured Parties, as provided under this Section 2.01(a)); and (viii) EIGHTH, any balance of such Proceeds remaining after the application pursuant to preceding clauses (i) and (ii), to the Grantors, their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may otherwise direct. If, despite the provisions of this Section 2.01(a), any Senior Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Senior Obligations to which it is then entitled in accordance with this Section 2.01(a), such Senior Secured Party shall hold such payment or recovery in trust for the benefit of all Senior Secured Parties for distribution in accordance with this Section 2.01(a). (b) Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Senior Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien the Initial Credit Agreement Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Senior Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Senior Obligations with respect to which such Impairment exists. (bc) It is acknowledged that the First-Lien Senior Obligations of any Series may, subject to the limitations set forth in the then extant Secured Senior Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Senior Secured Parties of any Series. (cd) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Senior Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Senior Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Senior Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.031.01(b)), each First-Lien Senior Secured Party hereby agrees that the Liens securing each Series of First-Lien Senior Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: Credit Agreement (Vine Resources Inc.), Credit Agreement (Vine Resources Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Note Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any FirstPari Passu-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any FirstPari Passu-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any FirstPari Passu-Lien Secured Party or received by the Applicable Controlling Collateral Agent or any FirstPari Passu-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the FirstPari Passu-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Note Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the FirstPari Passu-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the FirstPari Passu-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Note Documents and (iii) THIRD, after payment of all FirstPari Passu-Lien Obligations, to the Company and the other Grantors Grantor or their its successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a FirstPari Passu-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of FirstPari Passu-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of FirstPari Passu-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of FirstPari Passu-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the FirstPari Passu-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Note Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the FirstPari Passu-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of FirstPari Passu-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Note Documents or any defect or deficiencies in the Liens securing the FirstPari Passu-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each FirstPari Passu-Lien Secured Party hereby agrees that the Liens securing each Series of FirstPari Passu-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: Supplemental Indenture (Centrus Energy Corp), Pari Passu Lien Intercreditor Agreement (Centrus Energy Corp)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Second Lien Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent Authorized Representative or any First-Second Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company any Issuer or any other Grantor or any First-Second Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral or Equity Released Proceeds received by the Applicable Authorized Representative or any First-Second Lien Secured Party on account of such enforcement of rights or remedies or received by the Applicable Collateral Agent Authorized Representative or any First-Second Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Second Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral comprising either Shared Collateral or Equity Release Proceeds and all proceeds of any such distribution and any proceeds of any insurance covering the Shared Collateral received by the Applicable Authorized Representative and not returned to any Grantor under any Secured Second Lien Document being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent Authorized Representative (in its capacity as such) secured by such Shared Collateral or in the case of Equity Release Proceeds, secured by the Underlying Assets pursuant to the terms of any Secured Credit Second Lien Document, owing to such Authorized Representatives ratably to each such Authorized Representative in accordance with the amounts payable to it pursuant to this clause FIRST, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-other Second Lien Obligations of each Series on a ratable basissecured by such Shared Collateral or, with in the case of Equity Release Proceeds, secured by the Underlying Assets, and, if the amount of such Proceeds is insufficient to be applied to pay in full the First-Second Lien Obligations of a given each Series so secured then such Proceeds shall be allocated among the Authorized Representative of each Series secured by such Shared Collateral or, in the case of Equity Release Proceeds, secured by the Underlying Assets, pro rata according to the amounts of such Second Lien Obligations owing to each such respective Authorized Representative and the other Second Lien Secured Parties represented by it for distribution by such Authorized Representative in accordance with the its respective terms of the applicable Secured Credit Second Lien Documents and (iii) THIRD, after payment of all First-Second Lien Obligations, to the Company Issuers and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. If, despite the provisions of this Section 2.01(a), any Second Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Second Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such Second Lien Secured Party shall hold such payment or recovery in trust for the benefit of all Second Lien Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral or Equity Release Proceeds for which a third party (other than a First-Second Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Second Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Second Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Equity Release Proceeds which are or Proceeds allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Equity Release Proceeds or Proceeds to be distributed in respect of the Series of First-Second Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: Indenture (Cloud Peak Energy Inc.), Indenture (Sequatchie Valley Coal Corp)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent Controlling Authorized Representative or any First-Lien Priority Secured Party is taking action to enforce rights in respect of any Shared Common Collateral, or any distribution is made in respect of any Shared Common Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-Lien Priority Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Common Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Priority Secured Party or are received by the Applicable Collateral Agent Controlling Authorized Representative or any First-Lien Priority Secured Party pursuant to any such intercreditor agreement with respect to such Shared Common Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Priority Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) by the Controlling Authorized Representative as follows: FIRST, to the payment of all amounts owing to each reasonable fees, costs and expenses incurred by the Controlling Authorized Representative in connection with such collection or sale or otherwise in connection with this Agreement, or any other First-Priority Collateral Agent (Document or any of the First-Priority Obligations, including all court costs and the reasonable fees and expenses of its agents, professional advisors and legal counsel, the repayment of all advances made by the Controlling Authorized Representative hereunder or under any other First-Priority Collateral Document on behalf of the Grantors, if any, and any other reasonable costs or expenses incurred in its capacity as such) pursuant connection with the exercise of any right or remedy hereunder or under any other First-Priority Collateral Document; SECOND, to the terms payment of all reasonable fees, costs and expenses incurred by the Authorized Representatives (other than the Authorized Representative that is the Controlling Authorized Representative) in connection with such collection or sale or otherwise in connection with this Agreement, or any other First-Priority Collateral Document or any of the First-Priority Obligations, including all court costs and the reasonable fees and expenses of its agents, professional advisors and legal counsel, the repayment of all advances made by such Authorized Representatives hereunder or under any other First-Priority Collateral Document on behalf of the Grantors, if any, and any other reasonable costs or expenses incurred in connection with the exercise of any Secured Credit right or remedy hereunder or under any other First-Priority Collateral Document, (ii) SECOND; THIRD, subject to Section 1.031.01(b), to the payment in full of the First-Lien Priority Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Priority Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents; and (iii) THIRD, after payment of all First-Lien ObligationsFOURTH, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may otherwise direct. Notwithstanding the foregoing, with respect to any Shared Common Collateral for which a third party (other than a First-Lien Priority Secured PartyParty and, without limiting the foregoing, after taking into account the effect of any applicable intercreditor agreements) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Priority Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Priority Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Common Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Common Collateral or Proceeds to be distributed in respect of the Series of First-Lien Priority Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Priority Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Priority Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Priority Obligations granted on the Shared Common Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Priority Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.031.01(b) hereof), each First-Lien Priority Secured Party hereby agrees that the Liens securing each Series of First-Lien Priority Obligations on any Shared Common Collateral shall be of equal priority.

Appears in 2 contracts

Samples: First Lien/First Lien Intercreditor Agreement (Coty Inc.), Credit Agreement (Communications Sales & Leasing, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent Controlling Authorized Representative or any First-Lien Priority Secured Party is taking action to enforce rights in respect of any Shared Common Collateral, or any distribution is made in respect of any Shared Common Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-Lien Priority Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Common Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Priority Secured Party or are received by the Applicable Collateral Agent Controlling Authorized Representative or any First-Lien Priority Secured Party pursuant to any such intercreditor agreement with respect to such Shared Common Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Priority Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) by the Controlling Authorized Representative as follows: FIRST, to the payment of all amounts owing to each reasonable fees, costs and expenses incurred by the Controlling Authorized Representative in connection with such collection or sale or otherwise in connection with this Agreement, or any other First-Priority Collateral Agent (Document or any of the First-Priority Obligations, including all court costs and the reasonable fees and expenses of its agents, professional advisors and legal counsel, the repayment of all advances made by the Controlling Authorized Representative hereunder or under any other First-Priority Collateral Document on behalf of the Grantors, if any, and any other reasonable costs or expenses incurred in its capacity as such) pursuant connection with the exercise of any right or remedy hereunder or under any other First-Priority Collateral Document; SECOND, to the terms payment of all reasonable fees, costs and expenses incurred by the Authorized Representatives (other than the Authorized Representative that is the Controlling Authorized Representative) in connection with such collection or sale or otherwise in connection with this Agreement, or any other First-Priority Collateral Document or any of the First-Priority Obligations, including all court costs and the reasonable fees and expenses of its agents, professional advisors and legal counsel, the repayment of all advances made by such Authorized Representatives hereunder or under any other First-Priority Collateral Document on behalf of the Grantors, if any, and any other reasonable costs or expenses incurred in connection with the exercise of any Secured Credit right or remedy hereunder or under any other First-Priority Collateral Document, (ii) SECOND; THIRD, subject to Section 1.031.01(b), to the payment in full of the First-Lien Priority Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Priority Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents; and (iii) THIRD, after payment of all First-Lien ObligationsFOURTH, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may otherwise direct. Notwithstanding the foregoing, with respect to any Shared Common Collateral for which a third party (other than a First-Lien Priority Secured PartyParty and, without limiting the foregoing, after taking into account the effect of any applicable intercreditor agreements) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Priority Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Priority Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Common Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Common Collateral or Proceeds to be distributed in respect of the Series of First-Lien Priority Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Priority Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Priority Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Priority Obligations granted on the Shared Common Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Priority Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.031.01(b) hereof), each First-Lien Priority Secured Party hereby agrees that the Liens securing each Series of First-Lien Priority Obligations on any Shared Common Collateral shall be of equal priority. (d) Notwithstanding anything to the contrary in this Agreement or any other Secured Credit Documents to the contrary, the applicable Authorized Representative (in each case, with respect to a Series of First-Priority Obligations) may: (i) take any action (not adverse to the pari-passu status of the Liens on the Common Collateral securing each other Series of First-Priority Obligations, or the rights of any other Authorized Representative to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien on the Common Collateral; (ii) file a claim, proof of claim or statement of interest with respect to such Series of First-Priority Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against any of the Grantors; (iii) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the applicable Series of First-Priority Secured Parties, including any claims secured by the Common Collateral, if any, in each case not in violation of the terms of this Agreement; (iv) file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not in violation of the terms of this Agreement; and (v) vote on any plan of reorganization, file any proof of claim, make other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement, with respect to such Series of First-Priority Obligations and the Common Collateral.

Appears in 2 contracts

Samples: Term Loan Credit Agreement (Fuller H B Co), Credit Agreement (Fuller H B Co)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company Holdings or any Borrower or other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-First Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each the Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series basis in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-First Lien Obligations, to Holdings or the Company and the Borrowers or other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the samesame pursuant to the Second Lien Intercreditor Agreement, if applicable, or otherwise, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations Obligations, after giving effect to the Second Lien Intercreditor Agreement, if applicable, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-First Lien Secured Party hereby agrees that the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal priority and, with respect to that portion of the Shared Collateral securing the Existing Notes Obligations pursuant to any First Lien Security Document, the Liens securing each Series of First Liens Obligations shall be of equal priority. (d) Notwithstanding anything in this Agreement or any other First Lien Security Documents to the contrary, cash deposited with the Collateral Agent to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of Letters of Credit pursuant to Section 2.23(j) of the Credit Agreement (or any equivalent successor provision) shall be applied as specified in such Section of the Credit Agreement and will not constitute Shared Collateral.

Appears in 2 contracts

Samples: Amendment and Restatement Agreement (Cbre Group, Inc.), Credit Agreement (Cb Richard Ellis Group Inc)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Second Priority Debt Documents to the contrary notwithstanding (but subject to Section 1.0313.06), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Second Priority Secured Party is taking action to enforce rights in respect of any Second Priority Shared Collateral, or any distribution is made in respect of any Second Priority Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company Borrower or any other Grantor Debtor or any First-Lien Second Priority Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) Agreement with respect to any Second Priority Shared CollateralCollateral or otherwise pursuant to Section 4.01, the proceeds of any sale, collection or other liquidation of any such Second Priority Shared Collateral by any First-Lien Second Priority Secured Party or received by the Applicable Collateral Agent or any First-Lien Second Priority Secured Party pursuant to any such intercreditor agreement this Agreement with respect to such Second Priority Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Second Priority Debt Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any together the “Second Priority Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRSTfirst, to the payment in full in cash of all fees, expenses and other amounts owing to the Designated Second Priority Representative and each Collateral Agent other Second Priority Representative (in each case in its capacity as such) pursuant to the terms of any Secured Credit Second Priority Debt Document, (ii) SECONDand second, subject to Section 1.0313.06, to the payment in full in cash of the First-Lien Second Priority Debt Obligations of each Series on a ratable basis, with such Proceeds proceeds to be applied to the First-Lien Second Priority Debt Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may directSecond Priority Debt Documents. Notwithstanding the foregoing, with respect to any Second Priority Shared Collateral for which a third party (other than a First-Lien Second Priority Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Second Priority Debt Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Second Priority Debt Obligations (such third party, an a Second Priority Intervening Creditor”), the value of any Second Priority Shared Collateral or Proceeds which are allocated to such Second Priority Intervening Creditor shall be deducted on a ratable basis solely from the Shared Second Priority Collateral or Proceeds proceeds to be distributed in respect of the Series of First-Lien Second Priority Debt Obligations with respect to which such Impairment exists. (b) Notwithstanding anything contained herein or in any of the Second Priority Debt Documents to the contrary (but subject to Section 13.06), if any Second Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Second Priority Collateral Proceeds, any such proceeds and distributions to which the Second Priority Debt Obligations are entitled, shall be applied first, to the payment in full in cash of all fees, expenses and other amounts owing to each Second Priority Representative (in its capacity as such) pursuant to the terms of any Second Priority Debt Document, and second, subject to Section 13.06, to the payment in full in cash of the Second Priority Debt Obligations of each Series on a ratable basis, with such proceeds to be applied to the Second Priority Debt Obligations of a given Series in accordance with the terms of the applicable Second Priority Debt Documents. (c) It is acknowledged that the First-Lien Second Priority Debt Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Second Priority Debt Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a13.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Second Priority Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: Intercreditor Agreement, Intercreditor Agreement (Garrett Motion Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Senior Priority Debt Documents to the contrary notwithstanding (but subject to Section 1.0312.06), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Senior Priority Secured Party is taking action to enforce rights in respect of any Shared Senior Priority Collateral, or any distribution is made in respect of any Senior Priority Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company Borrower or any other Grantor Debtor or any First-Lien Senior Priority Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) Agreement with respect to any Senior Priority Shared CollateralCollateral or otherwise pursuant to Section 4.01, the proceeds of any sale, collection or other liquidation of any such Senior Priority Shared Collateral by any First-Lien Senior Priority Secured Party or received by the Applicable Collateral Agent or any First-Lien Senior Priority Secured Party pursuant to any such intercreditor agreement this Agreement with respect to such Senior Priority Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Senior Priority Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any together the “Senior Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRSTfirst, to the payment in full in cash of all fees, expenses and other amounts owing to the Designated Senior Priority Representative and each Collateral Agent other Senior Priority Representative (in each case in its capacity as such) pursuant to the terms of any Secured Credit Senior Priority Debt Document, (ii) SECONDand second, subject to Section 1.0312.07, to the payment in full in cash of the First-Lien Senior Priority Obligations of each Series on a ratable basis, with such Proceeds proceeds to be applied to the First-Lien Senior Priority Obligations of a given Series in accordance with the terms of the applicable Secured Credit Senior Priority Debt Documents and (iii) THIRDprovided, after payment of all First-Lien Obligationshowever, to that the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may TLB Proceeds Loan Creditor shall only be lawfully entitled to receive such proceeds (on a ratable basis) to the sameextent such proceeds result directly from a recovery, distribution or as a court of competent jurisdiction may directpayment (howsoever described) from the Swiss Borrower). Notwithstanding the foregoing, with respect to any Senior Priority Shared Collateral for which a third party (other than a First-Lien Senior Priority Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Senior Priority Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Senior Priority Obligations (such third party, an “Senior Priority Intervening Creditor”), the value of any Senior Priority Shared Collateral or Proceeds which are allocated to such Senior Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Priority Shared Collateral or Proceeds proceeds to be distributed in respect of the Series of First-Lien Senior Priority Obligations with respect to which such Impairment exists. (b) Notwithstanding anything contained herein or in any of the Senior Priority Debt Documents to the contrary (but subject to Section 12.07), if any Senior Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Collateral Proceeds, any such proceeds and distributions to which the Senior Priority Obligations are entitled, shall be applied first, to the payment in full in cash of all fees, expenses and other amounts owing to each Senior Priority Representative (in its capacity as such) pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash of the Senior Priority Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower). (c) It is acknowledged that the First-Lien Senior Priority Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Senior Priority Debt Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a12.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Senior Priority Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 2 contracts

Samples: Intercreditor Agreement, Intercreditor Agreement (Garrett Motion Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Priority Lien Documents to the contrary notwithstanding (but subject in all respects to Section 1.03)the Intercreditor Agreement, if an Event of Default (as such term is defined under any Priority Lien Document) has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Trustee (acting pursuant to an Act of Required Secured Party Parties) is taking action to enforce rights in respect of any Shared Collateral, or any distribution (including any adequate protection payments) is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company Issuer or any other Grantor Guarantor or any First-Priority Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Priority Lien Secured Party or received by the Applicable Collateral Agent or any First-Priority Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, payments, or proceeds to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such payment or distribution being collectively referred to as “Proceeds”), shall be applied applied: (i) FIRST, to the payment in full in cash of all amounts owing to each Collateral Agent Priority Lien Representative (in its capacity as such) and the Collateral Trustee pursuant to the terms of any Secured Credit Priority Lien Security Document, ; (ii) SECOND, subject to Section 1.03, to the payment in full in cash of the First-Priority Lien Obligations of each Series of Priority Lien Debt secured by a valid and perfected Lien on such Collateral, on a ratable basis, with such Proceeds to be applied to the First-Priority Lien Obligations of a given Series of Priority Lien Debt in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment Priority Lien Documents; provided that following the commencement of all First-Lien Obligations, to the Company and the other Grantors any Insolvency or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, Liquidation Proceeding with respect to any Shared Collateral for which a third party (other than a First-Guarantor, solely as among the Priority Lien Secured PartyParties and solely for purposes of this Section 2.3(a)(ii) has a lien or security interest that is junior in priority to the security interest of and not any Series of First-other Priority Lien Obligations but senior (as determined by appropriate legal proceedings Documents, in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), event the value of any Shared the Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted is not sufficient for the entire amount of Post-Petition Interest on a ratable basis solely from the Shared Priority Lien Obligations secured by the Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. allowed under Section 506(a) and (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Bankruptcy Code of any jurisdiction, or any other applicable law provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-amount of Priority Lien Obligations of any each Series of Priority Lien Debt shall include only the maximum amount of Post-Petition Interest on the Priority Lien Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other circumstance whatsoever (but, applicable provision of the Bankruptcy Code or other Bankruptcy Law in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.such Insolvency or Liquidation Proceeding; and 19

Appears in 1 contract

Samples: Supplemental Indenture (Altera Infrastructure L.P.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, continuing and the Applicable Controlling Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company Borrower or any other Grantor or any First-Lien Equal Priority Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-Lien Equal Priority Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) or payment (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution or payment being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Equal Priority Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Equal Priority Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents applicable to such Series and (iii) THIRD, after payment the Discharge of all First-Lien Equal Priority Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomever may be lawfully entitled to receive the samesame pursuant to any Junior Priority Intercreditor Agreement then in effect, or otherwise, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien an Equal Priority Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations Equal Priority Obligations, after giving effect to any Junior Priority Intercreditor Agreement then in effect, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Equal Priority Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which that are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Equal Priority Obligations with respect to which such Impairment exists. If, despite the provisions of this Section 2.01(a), any Equal Priority Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Equal Priority Obligations to which it is then entitled in accordance with this Section 2.01(a), such Equal Priority Secured Party shall hold such payment or recovery in trust for the benefit of all Equal Priority Secured Parties for distribution in accordance with this Section 2.01(a). (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Equal Priority Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Equal Priority Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Equal Priority Secured Party hereby agrees that (i) the Liens securing each Series of First-Lien Equal Priority Obligations on any Shared Collateral shall be of equal prioritypriority and (ii) the benefits and proceeds of the Shared Collateral shall be shared among the Equal Priority Secured Parties as provided herein.

Appears in 1 contract

Samples: Equal Priority Intercreditor Agreement (Ww International, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.03 and the following sentence), subject to the Intercreditor Agreement (as defined in the Credit Agreement) if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights or remedies in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company or any other Grantor (including any adequate protection payments) or any First-Lien Secured Party receives any payment or distribution pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party on account of such enforcement rights or remedies or received by the Applicable Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, proceeds or payments to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all such payments, distributions, proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds or payments of any such distribution being collectively referred to as “Proceeds”), ) shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) on a ratable basis pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series secured by a valid and perfected lien on such Shared Collateral on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents, provided that following the commencement of any Insolvency or Liquidation Proceeding with respect to the Company or any other Grantor, solely as among the Secured Parties and solely for purposes of this clause SECOND and not any Secured Credit Documents, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of Obligations of each Series of Obligations constituting Post-Petition Interest shall include only the maximum amount of Post-Petition Interest on the Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. If, despite the provisions of the Section 2.01(a), any Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Obligations to which it is then entitled in accordance with this Section 2.01(a), such Secured Party shall hold such payment or recovery in trust for the benefit of all Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for upon which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: Second Lien Credit Agreement (Post Holdings, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company Borrower or any other Grantor (including any adequate protection payments) or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by the Controlling Collateral Agent or any First-Lien Secured Party on account of such enforcement of rights or remedies or received by the Applicable Controlling Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents; provided that following the commencement of any Insolvency or Liquidation Proceeding of the Borrower or any other Grantor, solely as among the holders of First-Lien Obligations and solely for purposes of this clause (ii) and not any other debt facility for the applicable Series of First-Lien Obligations, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the First-Lien Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other applicable Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of First-Lien Obligations of each Series of First-Lien Obligations shall include only the maximum amount of Post-Petition Interest on the First-Lien Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other applicable Bankruptcy Law in such Insolvency or Liquidation Proceeding and (iii) THIRD, after payment Discharge of all First-Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. If, despite the provisions of this Section 2.01(a), any First-Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First-Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First-Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First-Lien Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority. (c) Notwithstanding anything in this Agreement or any other First-Lien Security Documents to the contrary, Collateral consisting of cash and cash equivalents pledged to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of Letters of Credit or otherwise held by the Credit Agreement Collateral Agent pursuant to Section 2.26, 3.5, 3.10 or Section 8 of the Credit Agreement (or any equivalent successor provision) shall be applied as specified in the Credit Agreement and will not constitute Shared Collateral.

Appears in 1 contract

Samples: Credit Agreement (Davita Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit First Lien Debt Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company Borrower or any other Grantor (including any adequate protection payments) or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-First Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), ) shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit First Lien Debt Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.,

Appears in 1 contract

Samples: Credit Agreement (Lamb Weston Holdings, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b) and Section 2.01(b)), if an Event of Default has occurred and is continuing, continuing and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company any Grantor or otherwise, or any other Grantor Collateral Agent or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, then the proceeds of any sale, collection or other liquidation or disposition of any such Shared Collateral received by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any such sale, collection or other liquidation or disposition of any Shared Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied in the following order: (i) FIRST, to (A) the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of this Agreement and any Secured Credit Document or Security Document, (B) in the case of any such enforcement of rights or exercise of remedies, to the payment of all costs and expenses incurred by such Collateral Agent or any of its related Secured Parties in connection therewith, including all court costs and the fees and expenses of agents and legal counsel, and (C) in the case of any such payment pursuant to any such intercreditor agreement or Credit Document to the payment of all costs and expenses incurred by such Collateral Agent or any of its related Secured Parties in enforcing its rights thereunder to obtain such payment; (ii) SECOND, subject to Section 1.031.01(b) and Section 2.01(b) to the extent Proceeds remain after the application pursuant to preceding clause (i), to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series basis in accordance with the amounts of such Obligations owed on the date of any such distribution and the terms of the applicable Secured Credit Documents and Documents; and (iii) THIRD, after payment the Discharge of all First-Lien each Series of Obligations, to the Company and extent Proceeds remain after the other Grantors application pursuant to the preceding clause (ii), to the Borrower or any Grantor, as applicable, their successors successor or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may otherwise direct. . (b) Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien Lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of as in effect in any U.S. jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.031.01(b) and Section 2.01(b)), each First-Lien Secured Party hereby agrees that (i) the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority, and (ii) the benefits and proceeds of the Shared Collateral shall be shared among the Secured Parties as provided herein.

Appears in 1 contract

Samples: Indenture (Beasley Broadcast Group Inc)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company Borrower or any other Grantor (including any adequate protection payments) or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by the Controlling Collateral Agent or any First-other First Lien Secured Party on account of such enforcement of rights or remedies or distribution in respect thereof in any Insolvency or Liquidation Proceeding (including any adequate protection payments) or received by the Applicable Controlling Collateral Agent or any First-other First Lien Secured Party pursuant to any such intercreditor agreement (other than this Agreement) with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such proceeds, payments or distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) ), including any First Lien/Second Lien Intercreditor Agreement (all distributions, payments, and proceeds of any sale, collection or other liquidation of any Shared Collateral and all payments and proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment in full in cash of all amounts owing to each Collateral Agent (in its capacity as suchsuch and, in the case of the First Lien Credit Agreement Collateral Agent, in its capacity as First Lien Credit Agreement Administrative Agent) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full in cash of the First-First Lien Obligations of each Series secured by a valid and perfected security interest in such Shared Collateral on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents; provided that following the commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor, solely as among the holders of First Lien Obligations and solely for purposes of this clause SECOND and not any other documents governing First Lien Obligations, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the First Lien Obligations secured by a valid and perfected security interest in such Shared Collateral to be allowed under Sections 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of First Lien Obligations of each Series of First Lien Obligations shall include only the maximum amount of Post-Petition Interest on the First Lien Obligations secured by a valid and perfected security interest in such Shared Collateral allowable under Sections 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding; and (iii) THIRD, THIRD after payment Discharge of all First-First Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. If, despite the provisions of this Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties in accordance with Section 2.03(b) for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, the potential second lien ranking of certain First Lien Security Documents under applicable law, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-First Lien Secured Party hereby agrees that the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal priority. (c) Notwithstanding anything in this Agreement, any Secured Credit Document or any other First Lien Security Documents to the contrary, Collateral consisting of cash and cash equivalents pledged to secure First Lien Credit Agreement Obligations or otherwise held by the First Lien Credit Agreement Collateral Agent or pursuant to Sections 2.18(b), 2.19 or 7.01 of the First Lien Credit Agreement (or any equivalent successor provision) (the “Non-Shared Collateral”) shall be applied as specified in the First Lien Credit Agreement and will not constitute Shared Collateral and it is understood and agreed that this Agreement shall not restrict the rights of any First Lien Credit Agreement Secured Party to pursue enforcement proceedings, exercise remedies or make determinations with respect to the Non-Shared Collateral in accordance with the First Lien Credit Agreement.

Appears in 1 contract

Samples: First Lien Intercreditor Agreement (Blackstone Mortgage Trust, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Pari Passu Documents to the contrary notwithstanding (but subject to Section 1.031.01(b) of this Agreement and the terms of the Junior Lien Intercreditor Agreement), if an Event of Default has occurred and is continuing, and the Applicable Authorized Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Common Collateral, or any distribution is made in respect of any Shared Common Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-Lien Pari Passu Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Common Collateral, the proceeds of any sale, collection or other liquidation of any such Common Collateral by any First-Lien Pari Passu Secured Party or received by the Applicable any Collateral Agent or any First-Lien other Pari Passu Secured Party pursuant to any such intercreditor agreement with respect to such Shared Common Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Pari Passu Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) as follows: FIRST, to the payment of all amounts owing to each Collateral Agent then unpaid (in its capacity as sucha) pursuant to the terms of any Secured Credit Documentfees and indemnities, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. reasonable costs and expenses incurred by and (c) Notwithstanding the datereasonable legal fees, time, method, manner costs and expenses or order of grant, attachment or perfection other liabilities of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (butkind incurred, in each case, subject by the Collateral Agents, any Authorized Representative or Other Agents in connection with any Pari Passu Security Document or any of the Pari Passu Lien Obligations, including (i) all court costs, (ii) the reasonable fees and expenses of their agents and legal counsel, (iii) the repayment of all advances made by the Collateral Agents, any Authorized Representative or Other Agents, as applicable, hereunder or under any other Pari Passu Security Document on behalf of Grantors and (iv) any other reasonable costs or expenses incurred in connection with the administration of or the exercise of any right or remedy hereunder or under any other Pari Passu Security Document, in each case of the foregoing, to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-extent the foregoing constitutes Pari Passu Lien Obligations under the Pari Passu Documents for the applicable Series; SECOND, to the payment of all other Pari Passu Lien Obligations (the amounts so applied to be distributed pro rata among the Pari Passu Secured Parties in accordance with the amounts of the Pari Passu Lien Obligations owed to them on the date of any Shared Collateral shall be of equal priority.such distribution); and

Appears in 1 contract

Samples: Pari Passu Intercreditor Agreement (FTS International, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding, and notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First Lien Obligations granted on the Shared Collateral or the existence of any intervening third party liens and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, any applicable real estate laws, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First Lien Obligations of any Series or any other circumstance whatsoever (but subject to Section 1.03including, without limitation, the existence of any intervening third party liens), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared CollateralCollateral (including by making a claim under any title insurance policy or any insurance policy or in connection with any condemnation or eminent domain proceeding), or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceedings of the Company any Grantor (it being understood that any cash payments in respect of Liens on Shared Collateral securing any First Lien Obligations, whether or not denominated as post-petition interest or adequate protection, paid in any Insolvency or Liquidation Proceeding shall be deemed to constitute a distribution made in respect of any Shared Collateral) or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the cash and non-cash proceeds of any sale, collection or other liquidation of any such Shared Collateral (including any amount paid under any title insurance policy or any insurance policy or in connection with any condemnation or eminent domain proceeding) by any First-First Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all the cash and non-cash proceeds of any sale, collection or other liquidation of any Shared Collateral (including any amount paid under any title insurance policy) and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each the Applicable Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, it being understood that any such payment of amounts owing to the Applicable Collateral Agent (in its capacity as such) shall be made solely out of cash proceeds until the payment in full of such amounts, (ii) SECOND, subject to Section 1.03, to the Administrative Agent for (A) the payment in full of the Firstall outstanding and non-Lien contingent Loan Agreement Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Loan Agreement, it being understood that obligations in respect to Secured Swap Contracts that have been terminated are outstanding and non-contingent for purposes of this Section 2.01(a), and (B) the deposit of cash collateral under the sole dominion and control of the Loan Agreement Collateral Agent or its designee in an amount equal to 105% of the sum of the aggregate undrawn amount of all then outstanding Letters of Credit pursuant to the Loan Agreement Documents and the aggregate facing and similar fees which will accrue thereon through the stated maturity of the Letters of Credit (assuming no drawings thereon before stated maturity), (iii) THIRD, after the outstanding and non-contingent Loan Agreement Obligations have been repaid in full and the corresponding Commitments (as defined in the Existing Loan Agreement) and commitments of the applicable lenders under any Replacement Loan Agreement have been terminated by corresponding amounts (and after the cash collateralization of the outstanding Letters of Credit required pursuant to the preceding clause), to the FLSO Authorized Representative for the payment in full of all Firstoutstanding and non-Lien contingent FLSO Obligations in accordance with and in the priority set forth in the terms of the FLSO Loan Documents (including to the FLSO Collateral Agent in its capacity as such and in the priority set forth in the FLSO Loan Documents (to the extent not already paid to the FLSO Collateral Agent under FIRST above)), (iv) FOURTH, to the Administrative Agent for the deposit of cash collateral in an amount sufficient to secure the payment in full of all then‑contingent Loan Agreement Obligations, including in respect of all outstanding Secured Swap Contracts that have not been terminated, to the extent that such cash collateralization is contemplated by or expressly provided for in the Loan Agreement Documents, (v) FIFTH, to the FLSO Authorized Representative for the deposit of cash collateral in an amount sufficient to secure the payment in full of all then-contingent FLSO Obligations, to the Company extent that such cash collateralization is contemplated by or expressly provided for in the FLSO Loan Documents, (vi) SIXTH, after the Discharge of all First Lien Obligations (including the repayment in full in cash thereof and the termination of all commitments in connection therewith), to the holders of junior Liens on the Collateral and (vii) SEVENTH, thereafter to the Authority and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, assigns or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced in accordance with Section 2.08 or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: First Lien Intercreditor Agreement (Mohegan Tribal Gaming Authority)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any saleliquidation, collection foreclosure, enforcement or other liquidation similar action of any such Shared Collateral by any First-Lien Secured Party or are received by the Applicable Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), ) shall be applied (i) FIRST, to the payment of all amounts owing to any Authorized Representative, as applicable and each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents, and (iii) THIRD, any balance of such Proceeds remaining after payment of all First-Lien Obligationsthe application pursuant to preceding clauses (i) and (ii), to the Company and the other Grantors or Grantors, their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, assigns or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for upon which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in this Agreement and the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority. (d) Notwithstanding anything in this Agreement or any other First-Lien Security Documents to the contrary, Collateral consisting of cash and cash equivalents pledged to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of Letters of Credit (solely to the extent pledged for the benefit of the relevant Letter of Credit issuer and any participants therein) shall be applied as specified in the Credit Agreement and will not constitute Shared Collateral. (e) If for any reason, the guaranties of, or Collateral securing, Additional First-Lien Obligations are less extensive than those guarantying or securing, as the case may be, the Credit Agreement Obligations, then (i) with regard to Collateral securing Credit Agreement Obligations only, such Collateral shall not be shared with the Additional First-Lien Secured Parties and the provisions of this Section 2.01 shall not apply to such Collateral or the proceeds thereof and (ii) with regard to any amounts received by the Credit Agreement Secured Parties pursuant to the respective guaranties, such amounts shall not be shared with the Additional First-Lien Secured Parties and the provisions of this Section 2.01 shall not apply to such amounts.

Appears in 1 contract

Samples: First Lien Intercreditor Agreement (Sabre Corp)

Priority of Claims. (a) Anything Notwithstanding anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03)contrary, if (x) an Event of Default has occurred and is continuingcontinuing and the maturity of any Class of First Lien Obligations has been accelerated, and the Applicable Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or (y) any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-First Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral Collateral, all Insurance Proceeds received in circumstances described in clauses (x) or (y) above and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each the Collateral Agent (in its capacity as such) pursuant to the terms of this Agreement and any Secured Credit DocumentDocument or in connection with the transactions contemplated thereunder and hereunder, (ii) SECOND, subject to Section 1.03, to the payment in full of all Revolving Obligations in accordance with the First-terms of the Revolving Credit Agreement in an amount not to exceed the Maximum Priority Payment Amount and (iii) THIRD, after the Revolving Obligations have been repaid in an amount equal to the lesser of (x) the Maximum Priority Payment Amount and (y) such amount as will result in the Discharge of the Revolving Obligations, to the payment in full of all remaining First Lien Obligations of each Series Class on a ratable basis, with such Proceeds to be applied to basis based on the First-Lien Obligations relative amounts of a given Series the secured obligations in accordance with the terms of the applicable Secured Credit Documents and Documents, (iiiiv) THIRDFOURTH, after payment the Discharge of all First-First Lien ObligationsObligations (including the repayment in full in cash thereof and the termination of all commitments in connection therewith), to the Company holders of junior Liens on the Collateral and (v) FIFTH, thereafter to Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, assigns or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-First Lien Obligations of any Series Class may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any SeriesClass. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: First Lien Intercreditor Agreement

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.03 and Section 2.10), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company Borrower or any other Grantor (including any adequate protection payments) or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement, but including the ABL Intercreditor Agreement) with respect to any Shared Collateral, the payments, proceeds or distribution of any sale, collection or other liquidation of any such Shared Collateral received by any Authorized Representative or any First Lien Secured Party and any such distribution or payment in any Insolvency or Liquidation Proceeding or to which the First Lien Secured Parties are entitled under any other intercreditor agreement (all such payments, distributions, proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such payments or distribution being collectively referred to as “Proceeds”), shall shall, subject to the terms of the ABL Intercreditor Agreement with respect to ABL Collateral, be applied (i) FIRST, to the payment of all amounts (including legal fees and expenses) owing to each Collateral Agent Authorized Representative (in its capacity as suchthe agent for the applicable First Lien Obligations) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents; provided that following the commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor, solely as among the holders of First Lien Obligations and solely for purposes of this clause SECOND and not any other documents governing First Lien Obligations, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the First Lien Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of First Lien Obligations of each Series of First Lien Obligations shall include only the maximum amount of Post-Petition Interest on the First Lien Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding; and (iii) THIRD, after payment the Discharge of all First-First Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the samesame pursuant to the ABL Intercreditor Agreement, if in effect, or otherwise, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations Obligations, after giving effect to the ABL Intercreditor Agreement, if applicable, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. If, despite the provisions of this Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties for distribution in accordance with this Section 2.01(a). (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities priority of claims and the application of proceeds of the Shared Collateral set forth in Section 2.01(a) or the other provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-First Lien Secured Party hereby agrees that (i) the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal prioritypriority and (ii) the benefits and proceeds of the Shared Collateral shall be shared among the First Lien Secured Parties as provided herein.

Appears in 1 contract

Samples: Indenture (RR Donnelley & Sons Co)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit First Lien Documents to the contrary notwithstanding (but subject to Section 1.03Sections 2.1(b) and 2.11(c)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-First Lien Secured Party Claimholder receives any payment pursuant to any intercreditor agreement (other than this Agreement) or otherwise with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral or Equity Release Proceeds received by any First-First Lien Secured Party Claimholder or received by the Applicable Collateral Agent or any First-First Lien Secured Party Claimholder pursuant to any such intercreditor agreement or otherwise with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately followingfollowing clause THIRD below) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) or otherwise (all proceeds of any sale, collection or other liquidation of any Collateral comprising either Shared Collateral or Equity Release Proceeds and all proceeds of any such distribution and any proceeds of any insurance covering the Shared Collateral received by the Applicable Collateral Agent and not returned to any Grantor under any First Lien Document being collectively referred to as “Proceeds”), subject to the ABL Intercreditor Agreement, shall be applied (i) FIRST, to by the payment of all amounts owing to each Applicable Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.following order:

Appears in 1 contract

Samples: Credit Agreement (Revlon Inc /De/)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit First Lien Documents to the contrary notwithstanding (but subject to Section 1.03Sections 2.1(b) and 2.11(c)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-First Lien Secured Party Claimholder receives any payment pursuant to any intercreditor agreement (other than this Agreement) or otherwise with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral or Equity Release Proceeds received by any First-First Lien Secured Party Claimholder or received by the Applicable Collateral Agent or any First-First Lien Secured Party Claimholder pursuant to any such intercreditor agreement or otherwise with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately followingfollowing clause THIRD below) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) or otherwise (all proceeds of any sale, collection or other liquidation of any Collateral comprising either Shared Collateral or Equity Release Proceeds and all proceeds of any such distribution and any proceeds of any insurance covering the Shared Collateral received by the Applicable Collateral Agent and not returned to any Grantor under any First Lien Document being collectively referred to as “Proceeds”), subject to the ABL Intercreditor Agreement, shall be applied by the Applicable Collateral Agent in the following order: US-DOCS\109698006.9 (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) and each Representative (in its capacity as such) secured by such Shared Collateral or, in the case of Equity Release Proceeds, secured by the Underlying Assets, including all reasonable costs and expenses incurred by each Collateral Agent (in its capacity as such) and each Representative (in its capacity as such) in connection with such collection or sale or otherwise in connection with this Agreement, any other First Lien Document or any of the First Lien Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other First Lien Document and all fees and indemnities owing to such Collateral Agents and Representatives, ratably to each such Collateral Agent and Representative in accordance with the amounts payable to it pursuant to the terms of any Secured Credit Document, this clause FIRST; (ii) SECOND, subject to Section 1.03Sections 2.1(b) and 2.11(c), to the extent Proceeds remain after the application pursuant to preceding clause (i), to each Representative for the payment in full of the First-other First Lien Obligations of each Series on a ratable basissecured by such Shared Collateral or, with in the case of Equity Release Proceeds, secured by the Underlying Assets, and, if the amount of such Proceeds are insufficient to be applied to pay in full the First-First Lien Obligations of a given each Series so secured then such Proceeds shall be allocated among the Representatives of each Series secured by such Shared Collateral or, in the case of Equity Release Proceeds, secured by the Underlying Assets, pro rata according to the amounts of such First Lien Obligations owing to each such respective Representative and the other First Lien Claimholders represented by it for distribution by such Representative in accordance with the terms of the applicable Secured Credit Documents and its respective First Lien Documents; and (iii) THIRD, any balance of such Proceeds remaining after payment of all First-Lien Obligationsthe application pursuant to preceding clauses (i) and (ii), to the Company and the other Grantors or Grantors, their successors or assigns, as their interests may appearassigns from time to time, or to whosoever whomever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect including pursuant to any Shared Collateral for which a third party (other than a First-Junior Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third partyIntercreditor Agreement, an “Intervening Creditor”)if applicable. If, the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or despite the provisions of this Agreement defining the relative rights Section 2.1(a), any First Lien Claimholder shall receive any payment or other recovery in excess of its portion of payments on account of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies to which it is then entitled in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to accordance with this Section 1.032.1(a), each First-such First Lien Secured Party hereby agrees that Claimholder shall hold such payment or recovery in trust for the Liens securing each Series benefit of First-all First Lien Obligations on any Shared Collateral shall be of equal priorityClaimholders for distribution in accordance with this Section 2.1(a).

Appears in 1 contract

Samples: First Lien Pari Passu Intercreditor Agreement (Revlon Inc /De/)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-other First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-First Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to by the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to order specified in Section 1.03, to the payment in full 5.02 of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to Security Agreement (or the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may directEquivalent Provision thereof). Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any disputedispute and after giving effect to any applicable intercreditor agreement (other than this Agreement)) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: Credit Agreement (CAESARS ENTERTAINMENT Corp)

Priority of Claims. (a) Anything Notwithstanding anything contained herein or in any of the Secured Credit Transaction Documents to the contrary notwithstanding (but subject to Section 1.03)contrary, if an Event of Default has occurred and is continuing, and the Applicable Collateral any Agent or any First-Lien Secured Party is taking action in accordance with the terms hereof to enforce rights in respect of any Shared LC Priority Collateral, or any distribution is made in respect of any Shared LC Priority Collateral in any Bankruptcy Case of the Company Insolvency or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared CollateralLiquidation Proceeding, the proceeds of any sale, collection or other liquidation of any such LC Priority Collateral by any First-Lien Senior Secured Party or received by the Applicable Collateral Agent Representative or any First-Lien other Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any LC Priority Collateral and all proceeds of any such distribution being collectively referred to as “LC Priority Collateral Proceeds”), shall shall, be applied applied: (i) FIRST, to the payment of all fees, indemnities, expenses and other amounts owing to each the Collateral Agent or the applicable Sub-Collateral Agent (each in its capacity as such) ), including without limitation pursuant to the terms of Section 4.06, in connection with this Agreement, any Secured Credit other Security Document, any other Secured Transaction Document or the Acknowledgment Agreement, (ii) SECOND, after a determination in accordance with Section 3.01 but subject to Section 1.03, to the LC Facility Agent for application to the payment in full of the First-Lien Obligations of each Series on a ratable basisall outstanding LC Facility Obligations, with such LC Priority Collateral Proceeds to be applied to the First-Lien LC Facility Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents LC Facility Agreement until such time as all LC Facility Obligations have been Discharged in Full, only at which time further distributions of the proceeds of LC Priority Collateral may be made in accordance with clauses (iii) and (iv) hereof, (iii) THIRD, after the Discharge in Full of the LC Facility Obligations, to Xxxx for application to payment of all First-Lien S&O Obligations (including with respect to any termination payments in accordance with the S&O Agreement) with such LC Priority Collateral Proceeds to be applied to the S&O Obligations in accordance with the S&O Agreement, and (iv) FOURTH, after the Discharge in Full of the S&O Obligations, to the Company and the other Grantors or their successors or assigns, as their interests such party may appeardirect in writing, or to whosoever may be lawfully entitled to receive the sameotherwise, or as a court of competent jurisdiction may direct. . (b) Notwithstanding anything contained herein or in any of the foregoingSecured Transaction Documents to the contrary, if an Event of Default has occurred and is continuing, and any Agent is taking action in accordance with the terms hereof to enforce rights in respect of any S&O Priority Collateral, or any distribution is made in respect of any S&O Priority Collateral in any Insolvency or Liquidation Proceeding, the proceeds of any sale, collection or other liquidation of any such S&O Priority Collateral by any Senior Secured Party Representative or any Secured Parties and proceeds of any such distribution (all proceeds of any sale, collection or other liquidation of any S&O Priority Collateral and all proceeds of any such distribution being collectively referred to as “S&O Priority Collateral Proceeds”), shall, be applied: (i) FIRST, to the payment of all fees, indemnities, expenses and other amounts owing to the Collateral Agent or the applicable Sub-Collateral Agent (each in its capacity as such), including without limitation pursuant to Section 4.06, in connection with this Agreement, any other Security Document, any other Secured Transaction Document or the Acknowledgment Agreement, (ii) SECOND, after a determination in accordance with Section 3.01 but subject to Section 1.03, to Xxxx for application to the payment of all outstanding S&O Obligations (including with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior termination payments and any ordinary course settlement payments under any Permitted Hedging Arrangements in priority to accordance with the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”S&O Agreement), the value of any Shared with such S&O Priority Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed applied to the S&O Obligations in respect accordance with the terms of the Series S&O Agreement, and (iii) THIRD, after the Discharge in Full of First-Lien Obligations with respect the S&O Obligations, to which the Company as such Impairment existsparty may direct in writing, or otherwise, or as a court of competent jurisdiction may direct. (bc) [Reserved.] (d) It is acknowledged that the First-Lien Secured Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Transaction Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) and (b) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (ce) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Secured Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Transaction Documents or any defect or deficiencies in the Liens securing the First-Lien Secured Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series benefits and proceeds of First-Lien Obligations on any the Shared Collateral shall be shared among the Secured Parties as provided herein. (f) As between LC Secured Parties on the one hand and Xxxx on the other any and all Liens in favor of equal prioritythe Collateral Agent or any Sub-Collateral Agent on LC Priority Collateral securing LC Facility Obligations are and will be prior, senior and superior to any and all Liens in favor of the Collateral Agent or any Sub-Collateral Agent on LC Priority Collateral securing S&O Obligations, and any and all Liens in favor of the Collateral Agent or any Sub-Collateral Agent on LC Priority Collateral securing S&O Obligations are and will be junior, subordinate and inferior to any and all Liens in favor of the Collateral Agent or any Sub-Collateral Agent on LC Priority Collateral securing LC Facility Obligations. As between Xxxx on the one hand and LC Secured Parties on the other any and all Liens in favor of the Collateral Agent or any Sub-Collateral Agent on S&O Priority Collateral securing S&O Obligations are and will be prior, senior and superior to any and all Liens in favor of the Collateral Agent or any Sub-Collateral Agent on S&O Priority Collateral securing LC Facility Obligations, and any and all Liens in favor of the Collateral Agent or any Sub-Collateral Agent on S&O Priority Collateral securing LC Facility Obligations are and will be junior, subordinate and inferior to any and all Liens in favor of the Collateral Agent or any Sub-Collateral Agent on S&O Priority Collateral securing S&O Obligations.

Appears in 1 contract

Samples: Collateral Agency and Intermediation Rights Agreement (Par Pacific Holdings, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if If an Event of Default (as defined in the Credit Agreement or any Additional First Lien Document) has occurred and is continuing, and (x) the Applicable Controlling Collateral Agent (as defined below) or (subject to the terms of the First Lien Parity Intercreditor Agreement) any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared CollateralCollateral in accordance with the terms of the applicable Secured Credit Documents, or (y) any distribution is made in respect of any Shared Collateral in any Bankruptcy Case insolvency or Liquidation Proceeding of the Company any grantor (including any adequate protection payments) or (z) any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any other intercreditor agreement (other than this the First Lien Parity Intercreditor Agreement) with respect to any Shared Collateral, then, in each case, the proceeds (i) of any sale, collection or other liquidation of any such Shared Collateral by any First-First Lien Secured Party or Party, (ii) of any distribution received by the Applicable Controlling Collateral Agent or any First-First Lien Secured Party pursuant to in any such intercreditor agreement insolvency or liquidation proceedings case of any grantor with respect to such Shared Collateral (including any adequate protection payments) (iii) and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) payment to which the First-First Lien Obligations are entitled under any intercreditor agreement with respect to the Shared Collateral (other than this the First Lien Parity Intercreditor Agreement) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such payment or distribution being collectively referred to as “Proceeds”), shall will be applied (i) FIRST, to the payment in full of all amounts then due and owing to each the Credit Agreement Collateral Agent and each other collateral agent named in the First Lien Parity Intercreditor Agreement or any joinder agreement thereto (in its capacity as such) pursuant to in connection with such collection or sale or otherwise in connection with the terms of First Lien Parity Intercreditor Agreement or any other Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations then due and payable of each Series series secured by a valid and perfected lien on such Shared Collateral on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations then due and payable of a given Series series in accordance with the terms of the applicable Secured Credit Documents Documents; provided, that following the commencement of any insolvency or liquidation proceeding with respect to the Borrower or any other grantor, solely as among the First Lien Secured Parties and solely for purposes of this clause SECOND and not any other Secured Credit Documents, in the event the value of the Shared Collateral is not sufficient for the entire amount of post-petition interest on the First Lien Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other bankruptcy law in such insolvency or liquidation proceeding, the amount of First Lien Obligations of each series of First Lien Obligations shall include only the maximum amount of post-petition interest on the First Lien Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other bankruptcy law in such insolvency or liquidation proceeding and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, applicable Loan Parties or to whosoever whomever may be lawfully entitled to receive the same, or same as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: First Lien Credit Agreement (Aleris Corp)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of Holdings, the Company Borrower or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment in full in cash of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full in cash of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment in full in cash of all First-Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. If, despite the provisions of this Section 2.01(a), any Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Obligations to which it is then entitled in accordance with this Section 2.01(a), such Secured Party shall hold such payment or recovery in trust for the benefit of all Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: Credit Agreement (MultiPlan Corp)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by the Controlling Collateral Agent or any First-Lien Secured Party on account of such enforcement of rights or remedies or received by the Applicable Controlling Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority. (c) Notwithstanding anything in this Agreement or any other First-Lien Security Documents to the contrary, Collateral consisting of cash and cash equivalents pledged to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of Letters of Credit or otherwise held by the Administrative Agent or the Credit Agreement Collateral Agent pursuant to Section 2.03(g), 2.05(b)(v), 2.17 or Article VIII of the Credit Agreement (or any equivalent successor provision) shall be applied as specified in the Credit Agreement and will not constitute Shared Collateral.

Appears in 1 contract

Samples: Second Amendment Agreement (CRC Health CORP)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights or remedies in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company Borrowers or any other Grantor (including any adequate protection payments) or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party on account of such enforcement rights or remedies or received by the Applicable Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, proceeds, or payment, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all payments, distributions, proceeds of any sale, collection or other liquidation or other disposition of any Shared Collateral and all proceeds or payments of any such distribution being collectively referred to as “Proceeds”), ) shall be applied [(as amount paid over to the Applicable Collateral Agent or any Secured Party pursuant to the Schedules hereto]37 (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) on a ratable basis pursuant to the terms of any Secured Credit Document, ________________________________ 36 To be used in connection with Additional Obligations that trigger clause (iih) SECOND, subject to Section 1.03, to the payment in full of the First-Lien “Collateral and Guarantee Requirement”. 37 To be used in connection with Additional Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms that trigger clause (h) of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the FirstGuarantee Requirement”. US-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.DOCS\99073489.6

Appears in 1 contract

Samples: Credit Agreement (W R Grace & Co)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent Controlling Authorized Representative or any First-Lien First- Priority Secured Party is taking action to enforce rights in respect of any Shared Common Collateral, or any distribution is made in respect of any Shared Common Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-Lien Priority Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Common Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Priority Secured Party or are received by the Applicable Collateral Agent Controlling Authorized Representative or any First-Lien Priority Secured Party pursuant to any such intercreditor agreement with respect to such Shared Common Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Priority Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) by the Controlling Authorized Representative as follows: FIRST, to the payment of all amounts owing to each reasonable fees, costs and expenses incurred by the Controlling Authorized Representative in connection with such collection or sale or otherwise in connection with this Agreement, or any other First-Priority Collateral Agent (Document or any of the First-Priority Obligations, including all court costs and the reasonable fees and expenses of its agents, professional advisors and legal counsel, the repayment of all advances made by the Controlling Authorized Representative hereunder or under any other First-Priority Collateral Document on behalf of the Grantors, if any, and any other reasonable costs or expenses incurred in its capacity as such) pursuant connection with the exercise of any right or remedy hereunder or under any other First-Priority Collateral Document; SECOND, to the terms payment of all reasonable fees, costs and expenses incurred by the Authorized Representatives (other than the Authorized Representative that is the Controlling Authorized Representative) in connection with such collection or sale or otherwise in connection with this Agreement, or any other First-Priority Collateral Document or any of the First-Priority Obligations, including all court costs and the reasonable fees and expenses of its agents, professional advisors and legal counsel, the repayment of all advances made by such Authorized Representatives hereunder or under any other First-Priority Collateral Document on behalf of the Grantors, if any, and any other reasonable costs or expenses incurred in connection with the exercise of any Secured Credit right or remedy hereunder or under any other First-Priority Collateral Document, (ii) SECOND; THIRD, subject to Section 1.031.01(b), to the payment in full of the First-Lien Priority Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Priority Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents; and (iii) THIRD, after payment of all First-Lien ObligationsFOURTH, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may otherwise direct. . (b) Notwithstanding the foregoing, with respect to any Shared Common Collateral for which a third party (other than a First-Lien Priority Secured PartyParty and, without limiting the foregoing, after taking into account the effect of any applicable intercreditor agreements) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Priority Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Priority Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Common Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Common Collateral or Proceeds to be distributed in respect of the Series of First-Lien Priority Obligations with respect to which such Impairment exists. (bc) It is acknowledged that the First-Lien Priority Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Priority Secured Parties of any Series. (cd) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Priority Obligations granted on the Shared Common Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Priority Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.031.01(b) hereof), each First-Lien Priority Secured Party hereby agrees that the Liens securing each Series of First-Lien Priority Obligations on any Shared Common Collateral shall be of equal priority. (e) Notwithstanding anything to the contrary in this Agreement or any other Secured Credit Documents to the contrary, the applicable Authorized Representative (in each case, with respect to a Series of First-Priority Obligations) may: (i) take any action (not adverse to the pari-passu status of the Liens on the Common Collateral securing each other Series of First-Priority Obligations, or the rights of any other Authorized Representative to exercise remedies in respect thereof) in order to create, perfect, preserve or protect its Lien on the Common Collateral; (ii) file a claim, proof of claim or statement of interest with respect to such Series of First-Priority Obligations; provided that an Insolvency or Liquidation Proceeding has been commenced by or against any of the Grantors; (iii) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the applicable Series of First-Priority Secured Parties, including any claims secured by the Common Collateral, if any, in each case not in violation of the terms of this Agreement; (iv) file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Grantors arising under either any Insolvency or Liquidation Proceeding or applicable non-bankruptcy law, in each case not in violation of the terms of this Agreement; and (v) vote on any plan of reorganization, file any proof of claim, make other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement, with respect to such Series of First-Priority Obligations and the Common Collateral.

Appears in 1 contract

Samples: Credit Agreement (Ugi Corp /Pa/)

Priority of Claims. (a) Anything Notwithstanding anything contained herein or in any of the Secured Credit Loan Documents to the contrary notwithstanding (but subject to Section 1.03)contrary, if (x) an Event of Default has occurred and is continuingcontinuing and the maturity of Loans has been accelerated, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, Collateral or (y) any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company bankruptcy or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds insolvency proceeding of any saleLoan Party, collection or other liquidation of any such Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral Collateral, all Insurance Proceeds received in circumstances described in clauses (x) or (y) above and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each the Collateral Agent (in its capacity as such) pursuant to the terms of this Agreement and any Secured Credit Documentother Loan Document or in connection with the transactions contemplated thereunder and hereunder, (ii) SECOND, subject to Section 1.03the payment in full of all Obligations in respect of Revolving Loans in accordance with the terms of this Agreement and (iii) THIRD, after the Obligations in respect of Revolving Loans have been repaid in full, to the payment in full of the First-Lien Obligations in respect of each Series on a ratable basisthe Term Loan. (b) Notwithstanding anything contained herein or in any of the Loan Documents to the contrary, with such if an Event of Default has occurred and is continuing, Net Cash Proceeds to shall be applied (i) FIRST, to the First-Lien payment of all amounts owing to the Collateral Agent (in its capacity as such) pursuant to the terms of this Agreement and any other Loan Document or in connection with the transactions contemplated thereunder and hereunder, (ii) SECOND, to the payment in full of all Obligations in respect of a given Series Revolving Loans in accordance with the terms of the applicable Secured Credit Documents this Agreement and (iii) THIRD, after payment the Obligations in respect of all First-Lien ObligationsRevolving Loans have been repaid in full, to the Company and payment in full of the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any SeriesTerm Loan. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection Each Term Loan Lender hereby agrees that if it shall obtain possession of any Liens securing Collateral or shall realize any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code proceeds or payment in respect of any jurisdictionCollateral, pursuant to any Security Document or by the exercise of any other rights available to it under applicable law or the Secured Credit Documents in any insolvency or any defect liquidation proceeding or deficiencies in the Liens securing the First-Lien Obligations of any Series or through any other circumstance whatsoever exercise of remedies (butincluding pursuant to any intercreditor agreement) at any time prior to the payment in full of the Obligations in respect of the Revolving Loan, then it shall hold such Collateral, proceeds or payment in each casetrust for the other Secured Parties and promptly transfer such Collateral, subject proceeds or payment, as the case may be, to the Collateral Agent, to be distributed in accordance with the provisions of the foregoing Section 1.032.22(a), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: Credit Agreement (Revel AC, Inc.)

Priority of Claims. (a) Anything Subject to the First Lien/Second Lien Intercreditor Agreement, anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any FirstSecond-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company Issuers or any other Grantor (including any adequate protection payments) or any FirstSecond-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by the Controlling Collateral Agent or any FirstSecond-Lien Secured Party or received by the Applicable Controlling Collateral Agent or any FirstSecond-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such payments, proceeds, or distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all such payments, proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the FirstSecond-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the FirstSecond-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents; provided that following the commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor, solely as among the holders of Second-Lien Obligations and solely for purposes of this clause SECOND and not any other documents governing the Second-Lien Obligations, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the Second-Lien Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of Second- Lien Obligations of each Series of Second-Lien Obligations shall include only the maximum amount of Post-Petition Interest on the Second-Lien Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding; and (iii) THIRD, after payment of all FirstSecond-Lien Obligations, to the Company Issuers and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for upon which a third party (other than a FirstSecond-Lien Secured Party) has a lien Lien or security interest that is junior in priority to the security interest of any Series of First-Second- Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of FirstSecond-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of FirstSecond-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: Indenture (Option Care Health, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit First Lien Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-First Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral the Indenture Agent or the Credit Facility Agent (in its their capacity as such) on a ratable basis pursuant to the terms of any Secured Credit First Lien Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series basis in accordance with the terms of the applicable Secured Credit First Lien Documents and (iii) THIRD, after payment of all First-First Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (ca) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit First Lien Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-First Lien Secured Party hereby agrees that the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: Intercreditor Agreement (TMX Finance LLC)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party Authorized Representative is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company Borrower or any other Grantor (including any adequate protection payments) or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) or payment (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution or payment being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment the Discharge of all First-First Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct; provided that following the commencement of any Insolvency or Liquidation Proceeding with respect to the Borrower or any other Grantor, solely for purposes of this Section 2.01(a) and not any other documents governing First Lien Obligations, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the First Lien Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of First Lien Obligations of each Series of First Lien Obligations shall include only the maximum amount of Post-Petition Interest allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations Obligations, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. If, despite the provisions of this Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust and as agent, for purposes of Swedish law only, for the benefit of all First Lien Secured Parties for distribution in accordance with this Section 2.01(a). (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdictionjurisdiction or the PPSA, or any other applicable law or the Secured Credit Documents, the second lien ranking under applicable law of certain First Lien Security Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-First Lien Secured Party hereby agrees that (i) the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal prioritypriority and (ii) the benefits and proceeds of the Shared Collateral shall be shared among the First Lien Secured Parties as provided herein.

Appears in 1 contract

Samples: First Lien Intercreditor Agreement (Concordia International Corp.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Pari Term Loan Debt Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case (including any adequate protection payments) of the Company Borrower or any other Grantor or any First-Lien Pari Term Loan Debt Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Pari Term Loan Debt Secured Party or received by the Applicable Collateral Agent or any First-Lien Pari Term Loan Debt Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Pari Term Loan Debt Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), ) shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Pari Term Loan Debt Obligations of each Series with a valid and perfected Lien on such Shared Collateral on a ratable basis, with such Proceeds to be applied to the First-Lien Pari Term Loan Debt Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents, provided that following the commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor, solely as among Pari Term Loan Debt Secured Parties and solely for purposes of this clause SECOND and not any other documents governing Pari Term Loan Debt Obligations, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the Pari Term Loan Debt Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of Pari Term Loan Debt Obligations of each Series of Pari Term Loan Debt Obligations shall include only the maximum amount of Post-Petition Interest on the Pari Term Loan Debt Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding; and (iii) THIRD, after payment of all First-Lien Pari Term Loan Debt Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. If, despite the provisions of this Section 2.01(a), any Pari Term Loan Debt Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Pari Term Loan Debt Obligations to which it is then entitled in accordance with this Section 2.01(a), such Pari Term Loan Debt Secured Party shall hold such payment or recovery in trust for the benefit of all Pari Term Loan Debt Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for upon which a third party (other than a First-Lien Pari Term Loan Debt Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Pari Term Loan Debt Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Pari Term Loan Debt Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Pari Term Loan Debt Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Pari Term Loan Debt Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Pari Term Loan Debt Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Pari Term Loan Debt Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, any applicable real estate laws, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Pari Term Loan Debt Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Pari Term Loan Debt Secured Party hereby agrees that the Liens securing each Series of First-Lien Pari Term Loan Debt Obligations on any Shared Collateral shall be of equal priority. (d) Notwithstanding anything in this Agreement or any other Pari Term Loan Debt Documents to the contrary, Collateral consisting of cash and cash equivalents pledged to secure Term Loan Debt held by the Administrative Agent or the Collateral Agent pursuant to Section 2.16 of the Term Loan Agreement (or any equivalent successor provision) shall be applied as specified in the Term Loan Agreement and will not constitute Shared Collateral.

Appears in 1 contract

Samples: Credit Agreement (Jo-Ann Stores Holdings Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company Borrower or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-First Lien Secured Party or received by the Applicable Controlling Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations of each Series secured by a valid and perfected Lien on such Shared Collateral on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-First Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. If, despite the provisions of this Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-First Lien Secured Party hereby agrees that the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: Credit Agreement (Cable One, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Common Collateral, or any distribution is made in respect of any Shared Common Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company or any other Grantor (including any adequate protection payments) or any First-Lien Priority Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Common Collateral, the proceeds of any sale, collection or other liquidation of any such Common Collateral by any First-Lien Priority Secured Party or received by the Applicable Collateral Agent or any First-Lien Priority Secured Party pursuant to any such intercreditor agreement with respect to such Shared Common Collateral and proceeds or payments of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Priority Obligations are entitled under any intercreditor agreement (other than this Agreement) (subject, in the case of any such proceeds, payment or distribution, to the sentence immediately following) (all such payments, distributions, or proceeds of any sale, collection or other liquidation of any Collateral Common Collateral, all proceeds received pursuant to such other intercreditor agreement and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) by the Applicable Collateral Agent as follows: FIRST, to the payment of all amounts owing to each the Applicable Collateral Agent (in its capacity as such) pursuant to secured by such Common Collateral, including all costs and expenses incurred by the terms Applicable Collateral Agent (in its capacity as such) in connection with such collection or sale or otherwise in connection with any Secured Credit Document or any of the First-Priority Obligations secured by such Common Collateral, including without limitation all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Applicable Collateral Agent under any Secured Credit Document on behalf of any Grantor, any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Secured Credit Document, (ii) and all other fees, indemnities and other amounts owing or reimbursable to the Applicable Collateral Agent under any Secured Credit Document in its capacity as such; SECOND, subject to Section 1.03, to the payment in full of the First-Lien Priority Obligations of each Series on a ratable basis, with secured by such Proceeds Common Collateral (the amounts so applied to be applied to distributed among the First-Lien Priority Secured Parties pro rata based on the respective amounts of such First-Priority Obligations owed to them on the date of a given Series any such distribution, with (x) the portion thereof distributed to the Credit Agreement Secured Parties to be further distributed in accordance with the terms order of priority set forth in Section 4.03 of the applicable Credit Agreement, (y) the portion thereof distributed to the Initial Other-First Priority Secured Credit Documents Parties to be further distributed in accordance with the order of priority set forth in Section 6.05 of the Initial Other First-Priority Agreement and (iiiz) THIRD, after payment the portion thereof distributed to the Secured Parties of all any Series of Other First-Lien ObligationsPriority Obligations to be further distributed in accordance with the applicable provisions of the Other First-Priority Agreements governing such Series; and THIRD, to the Company and the other Grantors or Grantors, their respective successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may otherwise direct. ; Notwithstanding the foregoing, with respect to any Shared Common Collateral for which a third party (other than a First-Lien Priority Secured PartyParty and, without limiting the foregoing, after taking into account the effect of any applicable intercreditor agreements) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Priority Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Priority Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Common Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Common Collateral or Proceeds to be distributed in respect of the Series of First-Lien Priority Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Priority Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Priority Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Priority Obligations granted on the Shared Common Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Priority Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.031.01(b) hereof), each First-Lien Priority Secured Party hereby agrees that the Liens securing each Series of First-Lien Priority Obligations on any Shared Common Collateral shall be of equal priority. (d) Notwithstanding anything to the contrary in this Agreement or the Secured Credit Documents, if an Event of Default has occurred and is continuing, any amounts required to be applied pursuant to an “asset sale sweep”, “excess cash flow sweep” or “unrestricted cash sweep” (or similar or equivalent provisions) under any Secured Credit Document shall be applied pro rata to each Series of First-Priority Obligations based on the respective outstanding amounts thereof at such time; provided, that for any Series of First-Priority Obligations where the relevant Secured Credit Document contemplates an offer to repurchase instead of a prepayment, such offer to repurchase, when made, shall be deemed to be a prepayment for purposes of this Section 2.01(d).

Appears in 1 contract

Samples: Credit Agreement (Gannett Co., Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Pari Passu Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company Borrower or any other Grantor or any First-Lien Pari Passu Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Pari Passu Secured Party or received by the Applicable Collateral Agent or any First-Lien Pari Passu Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Pari Passu Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each the Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Pari Passu Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Pari Passu Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Pari Passu Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the samesame pursuant to the Junior Lien Intercreditor Agreement, if applicable, or otherwise, as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for upon which a third party (other than a First-Lien Pari Passu Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Pari Passu Obligations, after giving effect to any Junior Lien Obligations Intercreditor Agreement, if applicable, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Pari Passu Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Pari Passu Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: Credit Agreement (Costar Group Inc)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if If an Event of Default (as defined in the Credit Agreement or any Additional First Lien Document) has occurred and is continuing, and (x) the Applicable Controlling Collateral Agent (as defined below) or (subject to the terms of the First Lien Intercreditor Agreement) any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared CollateralCollateral in accordance with the terms of the applicable Secured Credit Documents, or (y) any distribution is made in respect of any Shared Collateral in any Bankruptcy Case bankruptcy case of the Company any grantor or (z) any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any other intercreditor agreement (other than this the First Lien Intercreditor Agreement) with respect to any Shared Collateral, then, in each case, the proceeds (i) of any sale, collection or other liquidation of any such Shared Collateral by any First-First Lien Secured Party or Party, (ii) received by the Applicable Controlling Collateral Agent or any First-First Lien Secured Party pursuant to any such other intercreditor agreement with respect to such Shared Collateral and proceeds (iii) of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this the First Lien Intercreditor Agreement) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall will be applied (i) FIRST, to the payment in full of all amounts then due and owing to each the Credit Agreement Collateral Agent and each other collateral agent named in the First Lien Intercreditor Agreement or any joinder agreement thereto (in its capacity as such) pursuant to in connection with such collection or sale or otherwise in connection with the terms of First Lien Intercreditor Agreement or any other Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations then due and payable of each Series series secured by such Shared Collateral on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations then due and payable of a given Series series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, applicable Loan Parties or to whosoever whomever may be lawfully entitled to receive the same, or same as a court of competent jurisdiction may direct. Notwithstanding CONTROLLING COLLATERAL AGENT: Until the foregoingearlier of (x) the Discharge of Credit Agreement Obligations (to be defined in the First Lien Intercreditor Agreement) and (y) the Non-Controlling Authorized Representative Enforcement Date (as defined below), the Credit Agreement Collateral Agent will be the Controlling Collateral Agent; provided that in the event the outstanding principal amount of the Loans and Commitments (as each such term is defined in the Credit Agreement) shall be less than $500,000,000, such Controlling Collateral Agent shall be determined by the holders of a majority in principal amount of the First Lien Obligations. From and after the earlier of (x) the Discharge of Credit Agreement Obligations and (y) the Non-Controlling Authorized Representative Enforcement Date, the Additional First Lien Collateral Agent (as defined below) will be the Controlling Collateral Agent. Pursuant to the terms of the First Lien Intercreditor Agreement, only the Controlling Collateral Agent (acting upon the instructions of the Applicable Authorized Representative (as defined below)) will act or refrain from acting with respect to any Shared Collateral. For so long as the Credit Agreement Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that Agent is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third partyControlling Collateral Agent, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-no Additional First Lien Secured Party hereby agrees will or will instruct any collateral agent to, and neither the Additional First Lien Collateral Agent nor any other collateral agent that is not the Controlling Collateral Agent will, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any other action available to it in respect of, any Shared Collateral. Notwithstanding the equal priority of the Liens securing each Series series of First-First Lien Obligations on any Obligations, the Controlling Collateral Agent may deal with the Shared Collateral shall as if such Controlling Collateral Agent had a senior Lien on such collateral. No Non- Controlling Authorized Representative (as defined below) or Non-Controlling Secured Party (to be defined in the First Lien Intercreditor Agreement) will contest, protest or object to any foreclosure proceeding or action brought by the Controlling Collateral Agent, the Applicable Authorized Representative or the Controlling Secured Party (to be defined in the First Lien Intercreditor Agreement) or any other exercise by the Controlling Collateral Agent, the Applicable Authorized Representative or the Controlling Secured Party of equal priorityany rights and remedies relating to the Shared Collateral, or to cause the Controlling Collateral Agent to do so.

Appears in 1 contract

Samples: Credit Agreement

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company Borrower or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by the Controlling Collateral Agent or any First-Lien Secured 31447054_4 NEWYORK 8660761 (2K) Party on account of such enforcement of rights or remedies or received by the Applicable Controlling Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after (A) payment in full of all First-Lien Obligations, (B) cancellation of, or entry into arrangements reasonably satisfactory to the Company relevant First Lien L/C Issuer with respect to, all First Lien Letters of Credit and (C) termination or expiration of all commitments to lend and all obligations to issue letters of credit under the Credit Agreement and any Additional First Lien Documents, to the Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: Credit Agreement (Bloomin' Brands, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) or otherwise with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral received by any First-First Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement or otherwise with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution and any proceeds of insurance covering the Shared Collateral received by the Applicable Collateral Agent and not returned to any Grantor under the applicable Secured Credit Document being collectively referred to as “Proceeds”), shall be applied by the Applicable Collateral Agent in the following order: (i) FIRST, to the payment of all amounts owing to reasonable fees, costs and expenses incurred by each Collateral Agent (in its capacity as such) pursuant to in connection with such collection or sale or otherwise in connection with this Agreement, any other Secured Credit Documents or any of the terms First Lien Obligations, including all court costs and the reasonable fees, costs and expenses of its agents, professional advisors and legal counsel, and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Secured Credit Document, Documents; (ii) SECOND, subject to Section 1.031.01(b), to the extent Proceeds remain after the application pursuant to preceding clause (i), to the Authorized Representative of each Series secured by such Shared Collateral for application to payment in full of the First-First Lien Obligations of each such Series secured by such Shared Collateral and, if the amount of such Proceeds are insufficient to pay in full the First Lien Obligations of each Series on a ratable basis, with secured by such Shared Collateral then such Proceeds to shall be applied allocated among the Authorized Representatives of each Series secured by such Shared Collateral pro rata according to the First-amounts of such First Lien Obligations of a given Series owing to each such respective Authorized Representative and the other First Lien Secured Parties represented by it for distribution by such Authorized Representative in accordance with the terms of the applicable its respective Secured Credit Documents and Documents; and (iii) THIRD, any balance of such Proceeds remaining after payment of all First-Lien Obligationsthe application pursuant to preceding clauses (i) and (ii), to the Company and the other Grantors or Grantors, their successors or assigns, as their interests may appear, or to whosoever whomever may be lawfully entitled to receive the samesame (including pursuant to any intercreditor agreement with respect to any Indebtedness junior to the First Lien Obligations). If, despite the provisions of this Section 2.01(a)(ii), any First Lien Secured Party shall receive any payment or as a court other recovery in excess of competent jurisdiction may direct. its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties for distribution in accordance with this Section 2.01(a). (b) Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (bc) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (cd) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.031.01(b)), each First-First Lien Secured Party hereby agrees that the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: Intercreditor Agreement (CNO Financial Group, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company any Borrower or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by the Controlling Collateral Agent or any First-Lien Secured Party on account of such enforcement of rights or remedies or received by the Applicable Controlling Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company Borrowers and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. If, despite the provisions of this Section 2.01(a), any First-Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First-Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First-Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First-Lien Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority. (c) Notwithstanding anything in this Agreement or any other First-Lien Security Documents to the contrary, Collateral consisting of cash and cash equivalents pledged to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of letters of credit, in respect of swing line loans or otherwise held by the Credit Agreement Collateral Agent pursuant to Section 2.04(e), 2.05(a), 2.17 or Article VIII of the Credit Agreement (or any equivalent successor provision) shall be applied as specified in the Credit Agreement and will not constitute Shared Collateral.

Appears in 1 contract

Samples: Credit Agreement (Patheon Inc)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this AgreementAgreement (to the extent such payment represents an application of Proceeds made pursuant to this Section 2.01)) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this AgreementAgreement (to the extent such distribution represents an application of Proceeds made pursuant to this Section 2.01)) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each the Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority. (d) Notwithstanding anything in this Agreement or any other First-Lien Security Document to the contrary, Collateral consisting of cash and Cash Equivalents pledged to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of Letters of Credit or otherwise held by the Administrative Agent or the Collateral Agent pursuant to the Credit Agreement, including any Defaulting Lender Reallocation Provisions (as hereinafter defined) therein (or any similar provision), shall be applied as specified in such Section of the Credit Agreement (or the arrangements specified therein) and will not constitute Shared Collateral.

Appears in 1 contract

Samples: Indenture (National CineMedia, LLC)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company Parent or any other Grantor (including any adequate protection payments) or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement, but including any Second Lien Intercreditor Agreement) and/or any First Lien Security Document with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) or payments (all such payments, distributions, proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such payment or distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents; provided that following the commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor, solely as among the holders of First Lien Obligations and solely for purposes of this clause SECOND and not any other documents governing First Lien Obligations, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the First Lien Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of First Lien Obligations of each Series of First Lien Obligations shall include only the maximum amount of Post-Petition Interest on the First Lien Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding and (iii) THIRD, after payment of all First-Lien Obligations, to the Company Parent and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the samesame pursuant to any Second Lien Intercreditor Agreement, if in effect, or otherwise, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations Obligations, after giving effect to the Second Lien Intercreditor Agreement, if applicable, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may. If, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or despite the provisions of this Agreement defining the relative rights Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First-First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties of any Seriesfor distribution in accordance with this Section 2.01(a). (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: Pari Passu Intercreditor Agreement (Cardtronics PLC)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared CollateralCollateral (including the Second Lien Intercreditor Agreement), the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-First Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any such intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to by the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to order specified in Section 1.03, to the payment in full 4.02 of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may directSecurity Agreement. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien Lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any disputedispute and after giving effect to any applicable intercreditor agreement (other than this Agreement)) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit DocumentsDocuments and subject to Section 2.08, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.031.01(b)), each First-First Lien Secured Party hereby agrees that the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: First Lien Intercreditor Agreement (Vici Properties Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or or, without limiting this Agreement including the prohibitions in Section 2.02 hereof, any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company Borrower or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Secured Party or received by the Applicable Controlling Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all reasonable costs and expenses incurred in connection with such sale, collection, 001317-0004-16372-Active.32162929 liquidation or other enforcement including fees and expenses of counsel (ii) SECOND, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) secured by such Collateral pursuant to the terms of any Secured Credit Document, (iiiii) SECONDTHIRD, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series secured by such Collateral on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iiiiv) THIRDFOURTH, after payment of all First-Lien ObligationsObligations secured by such Collateral, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority. (d) Notwithstanding anything in this Agreement or any other First-Lien Security Documents to the contrary, Collateral consisting of cash and cash equivalents pledged to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of Letters of Credit or otherwise held by the Administrative Agent or the Collateral Agent pursuant to Section 3.3(d), 5.3(a) or 11.12 of the Credit Agreement (or any equivalent successor provision) shall be applied as specified in the Credit Agreement and will not constitute Shared Collateral.

Appears in 1 contract

Samples: Credit Agreement (Laureate Education, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company Borrower or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by the Controlling Collateral Agent or any First-Lien Secured Party on account of such enforcement of rights or remedies or received by the Applicable Controlling Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent and Authorized Representative (each in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after (A) payment in full of all First-Lien Obligations, (B) cancellation of, or entry into arrangements reasonably satisfactory to the Company relevant First Lien L/C Issuer with respect to, all First Lien Letters of Credit and (C) termination or expiration of all commitments to lend and all obligations to issue letters of credit under the Credit Agreement and any Additional First Lien Documents, to the Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority. (c) Notwithstanding anything in this Agreement or any other First-Lien Security Documents to the contrary, Collateral consisting of cash and cash equivalents pledged to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of Letters of Credit or otherwise held by the Credit Agreement Collateral Agent pursuant to Sections 2.03(a)(ii), 2.03(b)(iii), 2.03(g), 2.03(l), 2.04(a), 2.06(b)(vi), 2.06(c), 2.18, 3.07(x)(g) or 3.07(y) or Article VIII of the Credit Agreement (or any equivalent successor provision) shall be applied as specified in the Credit Agreement and will not constitute Shared Collateral.

Appears in 1 contract

Samples: Credit Agreement (Bright Horizons Family Solutions Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company either Borrower or any other Grantor (including any adequate protection payments) or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) and/or any First Lien Security Document with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) or payments (all such payments, distributions, proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such payment or distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts (including, without limitation, fees) owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents; provided that following the commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor, solely as among the holders of First Lien Obligations and solely for purposes of this clause SECOND and not any other documents governing First Lien Obligations, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the First Lien Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of First Lien Obligations of each Series of First Lien Obligations shall include only the maximum amount of Post-Petition Interest on the First Lien Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding and (iii) THIRD, after payment of all First-Lien Obligations, to the Company Borrowers and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, same or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations Obligations, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. If, despite the provisions of this Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties for distribution in accordance with this Section 2.01(a). (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents, the potential second lien ranking of certain First Lien Security Documents under applicable law or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Collateral Agent, for itself and on behalf of each applicable First Lien Secured Party hereby agrees that (i) the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal prioritypriority and (ii) the benefits and proceeds of the Shared Collateral shall be shared among the First Lien Secured Parties as provided herein. (d) Notwithstanding anything in this Agreement or any other Secured Credit Document to the contrary, prior to the Discharge of the Credit Agreement Obligations, Collateral consisting of cash and cash equivalents pledged to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of Letters of Credit or any Defaulting Lender’s LC Exposure pursuant to the Credit Agreement shall be applied as specified in the Credit Agreement and will not constitute Shared Collateral.

Appears in 1 contract

Samples: Credit Agreement (ChampionX Corp)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Loan Documents to the contrary notwithstanding (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party Trustee is taking action to enforce rights in respect of any Shared Collateral, Restricted Assets or Sale Proceeds or any distribution is made in respect of any Shared Collateral Collateral, Restricted Assets or Sale Proceeds in any Bankruptcy Case of the Company or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, Restricted Assets or Sale Proceeds the proceeds of any sale, collection or other liquidation of any such Collateral Shared Collateral, Restricted Assets or Sale Proceeds by any First-First Lien Secured Party or received by the Applicable Collateral Agent Trustee or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral Collateral, Restricted Assets or Sale Proceeds and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), subject to the ABL Intercreditor Agreement if then in effect, shall be applied by the Collateral Trustee in the following order: (i) FIRST, to the payment of all amounts owing to each reasonable costs and expenses incurred by the Collateral Agent Trustee (in its capacity as such) pursuant to in connection with such collection or sale or otherwise in connection with this Agreement, any other Secured Loan Documents or any of the terms First Lien Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Secured Credit Document, Loan Documents; (ii) SECOND, subject to Section 1.031.01(b), to the extent Proceeds remain after the application pursuant to preceding clause (i), to the payment in full of the First-First Lien Obligations of each Series on a ratable basis, with secured by such Proceeds Shared Collateral (the amounts so applied to be applied to distributed among the First-First Lien Secured Parties pro rata in accordance with the respective principal amounts of such First Lien Obligations owed to them on the date of a given Series any such distribution and in accordance with the terms of the applicable Secured Credit Documents and Loan Documents); and (iii) THIRD, any balance of such Proceeds remaining after payment of all First-Lien Obligationsthe application pursuant to preceding clauses (i) and (ii), to the Company and the other Grantors or Grantors, their successors or assigns, as their interests may appear, or to whosoever whomever may be lawfully entitled thereto. If, despite the provisions of this Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to receive which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the same, or as a court benefit of competent jurisdiction may direct. all First Lien Secured Parties for distribution in accordance with this Section 2.01(a). (b) Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (bc) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Loan Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (cd) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Loan Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.031.01(b) and Section 2.01(b)), (i) each First-First Lien Secured Party hereby agrees that the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal prioritypriority and (ii) the benefits and proceeds of the Shared Collateral shall be shared among the First Lien Secured Parties as provided herein, regardless of the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First Lien Obligations, granted on the Shared Collateral.

Appears in 1 contract

Samples: Pari Passu Intercreditor Agreement (Tenneco Inc)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding, and notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Senior Lien Obligations granted on the Shared Collateral or the existence of any intervening third party Liens and notwithstanding any provisions of the Uniform Commercial Code of any jurisdictions, any applicable real estate laws, or any other circumstance whatsoever (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and (i) the Applicable Collateral Agent Authorized Representative or any First-Senior Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or (ii) any distribution is made in respect of any Shared Collateral in any Bankruptcy Case or other Insolvency or Liquidation Proceeding of the Company any Borrower or any other Grantor or (iii) any First-Senior Lien Secured Party receives any payment pursuant to the Senior/Junior Intercreditor Agreement, the ABL Intercreditor Agreement or any other intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral (including any amount paid under any title insurance policy or any insurance policy or in connection with any condemnation or eminent domain proceeding) by any First-Senior Lien Secured Party or received by the Applicable Collateral Agent Authorized Representative or any First-Senior Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral (including any amount paid under any title insurance policy) and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-any Senior Lien Obligations Secured Parties are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.applied:

Appears in 1 contract

Samples: Senior Lien Term Loan Credit Agreement (Forterra, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any FirstSecond-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company Borrower or any other Grantor or any FirstSecond-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by the Controlling Collateral Agent or any FirstSecond-Lien Secured Party on account of such enforcement of rights or remedies or received by the Applicable Controlling Collateral Agent or any FirstSecond-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the FirstSecond-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the FirstSecond-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the FirstSecond-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all FirstSecond-Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a FirstSecond-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of FirstSecond-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of FirstSecond-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of FirstSecond-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: First Lien Credit Agreement (TransFirst Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company Borrower or any other Grantor (including any adequate protection payments) or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement, but including the Other Intercreditor Agreements) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) or payment (all such payments, distributions, proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall shall, be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents; provided that following the commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor, solely as among the holders of First Lien Obligations and solely for purposes of this clause SECOND and not any Secured Credit Documents, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the First Lien Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of First Lien Obligations of each Series of First Lien Obligations shall include only the maximum amount of Post-Petition Interest on the First Lien Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding and (iii) THIRD, after payment the Discharge of all First-First Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the samesame pursuant to the Second Lien Intercreditor Agreement, if in effect, or otherwise, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations Obligations, after giving effect to the Second Lien Intercreditor Agreement, if applicable, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. If, despite the provisions of this Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties for distribution in accordance with this Section 2.01(a). (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities and order of application of Proceeds set forth in Section 2.01(a) or the other provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-First Lien Secured Party hereby agrees that (i) the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal prioritypriority and (ii) the benefits and proceeds of the Shared Collateral shall be shared among the First Lien Secured Parties as provided herein.

Appears in 1 contract

Samples: First Lien Intercreditor Agreement (Avantor, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party Controlling Authorized Representative is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-Lien Equal Priority Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Equal Priority Secured Party or received by the Applicable Collateral Agent an Authorized Representative or any First-Lien Equal Priority Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution or payment (subject, in the case of any such distributiondistribution or payment, to the sentence immediately following) to which the First-Lien Equal Priority Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution or payment being collectively referred to as “Proceeds”), shall be applied (i) by the Controlling Authorized Representative in the following order: FIRST, to the payment of all out-of-pocket costs and expenses incurred by each Authorized Representative in its capacity as such in connection with such collection or sale or otherwise in connection with this Agreement, any Secured Credit Document or any of the Equal Priority Obligations secured by such Collateral, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all amounts paid by any Authorized Representative under any Secured Credit Document in respect of the protection or maintenance of any Shared Collateral on behalf of any Grantor, any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Secured Credit Document, and all other fees, indemnities and other amounts owing or reimbursable to each Collateral Agent (any Authorized Representative under this Agreement or any Secured Credit Document in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) ; SECOND, subject to Section 1.03, to the payment in full of the First-Lien Equal Priority Obligations of each Series on a ratable basis, with secured by such Proceeds Shared Collateral (the amounts so applied to be applied distributed between the Equal Priority Secured Parties pro rata based on the respective amounts of such Equal Priority Obligations owed to them on the First-Lien Obligations date of a given Series any such distribution), in accordance with the terms of the applicable Secured Credit Documents governing the applicable Series of Equal Priority Obligations; and (iii) THIRD, after payment the Discharge of all First-Lien Equal Priority Obligations, to the Company and the other Grantors or Grantors, their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may otherwise direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien an Equal Priority Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Equal Priority Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Equal Priority Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which that are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Equal Priority Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may. If, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or despite the provisions of this Agreement defining the relative rights Section 2.01(a), any Equal Priority Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First-Lien Equal Priority Obligations to which it is then entitled in accordance with this Section 2.01(a), such Equal Priority Secured Party shall hold such payment or recovery in trust for the benefit of all Equal Priority Secured Parties for distribution in accordance with this Section 2.01(a). The Controlling Authorized Representative shall have absolute discretion as to the time of application of any Series. (c) Notwithstanding proceeds, moneys or balances in accordance with this Agreement. Upon the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision request of the Uniform Commercial Code of Controlling Authorized Representative prior to any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to distribution under this Section 1.032.01(a), each First-Lien Authorized Representative shall provide to the Controlling Authorized Representative certificates, in form and substance reasonably satisfactory to the Controlling Authorized Representative, setting forth the respective amounts referred to in this Section 2.01 that each applicable Equal Priority Secured Party hereby agrees that or its Authorized Representative believes it is entitled to receive, and the Liens securing each Series of First-Lien Obligations on any Shared Collateral Controlling Authorized Representative shall be of equal priorityfully entitled to rely on such certificates.

Appears in 1 contract

Samples: Note Purchase Agreement (Pitney Bowes Inc /De/)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if If an Event of Default (as defined in the Credit Agreement or any Additional First Lien Document) has occurred and is continuing, and (x) the Applicable Controlling Collateral Agent (as defined below) or (subject to the terms of the First Lien Intercreditor Agreement) any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared CollateralCollateral in accordance with the terms of the applicable Secured Credit Documents, or (y) any distribution is made in respect of any Shared Collateral in any Bankruptcy Case bankruptcy case of the Company any grantor or (z) any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any other intercreditor agreement (other than this the First Lien Intercreditor Agreement) with respect to any Shared Collateral, then, in each case, the proceeds (i) of any sale, collection or other liquidation of any such Shared Collateral by any First-First Lien Secured Party or Party, (ii) received by the Applicable Controlling Collateral Agent or any First-First Lien Secured Party pursuant to any such other intercreditor agreement with respect to such Shared Collateral and proceeds (iii) of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this the First Lien Intercreditor Agreement) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall will be applied (i) FIRST, to the payment in full of all amounts then due and owing to each the Credit Agreement Collateral Agent and each other collateral agent named in the First Lien Intercreditor Agreement or any joinder agreement thereto (in its capacity as such) pursuant to in connection with such collection or sale or otherwise in connection with the terms of First Lien Intercreditor Agreement or any other Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations then due and payable of each Series series secured by such Shared Collateral on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations then due and payable of a given Series series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, applicable Loan Parties or to whosoever whomever may be lawfully entitled to receive the same, or same as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: Credit Agreement (Zebra Technologies Corp)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of a Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company Borrower or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. If, despite the provisions of this Section 2.01(a), any Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Obligations to which it is then entitled in accordance with this Section 2.01(a), such Secured Party shall hold such payment or recovery in trust for the benefit of all Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Tesoro Corp /New/)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit First Lien Debt Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company Borrower or any other Grantor (including any adequate protection payments) or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement, but including the Other Intercreditor Agreements) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-First Lien Secured Party or received by the Applicable any Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement (other than this Agreement, but including the Other Intercreditor Agreements) with respect to such Shared Collateral and proceeds of any such distribution or payment (subject, in the case of any such distributionproceeds, distribution or payment, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all payments, distributions, proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such payments or distribution being collectively referred to as “Proceeds”), ) shall be applied (i) FIRST, to the payment in full in cash of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit First Lien Debt Document, (ii) SECOND, subject to Section 1.03, to the payment in full in cash of the First-First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents First Lien Debt Documents, provided that following the commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor, solely as among the holders of First Lien Obligations and solely for purposes of this clause SECOND and not any First Lien Debt Documents, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the First Lien Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of First Lien Obligations of each Series of First Lien Obligations shall include only the maximum amount of Post-Petition Interest on the First Lien Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding; and (iii) THIRD, after payment in full in cash and Discharge of all First-First Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the samesame pursuant to any Other Intercreditor Agreement, if in effect, or otherwise, or as a court of competent jurisdiction may direct. If, despite the provisions of this Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for upon which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations Obligations, after giving effect to any Permitted Junior Intercreditor Agreement, if applicable, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit DocumentsFirst Lien Debt Documents and subject to Section 2.08, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, any applicable real estate laws, or any other applicable law or the Secured Credit First Lien Debt Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-First Lien Secured Party hereby agrees that the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal priority. (d) Notwithstanding anything in this Agreement or any other First Lien Debt Documents to the contrary, Collateral consisting of cash and cash equivalents pledged to secure Credit Agreement Obligations consisting of reimbursement obligations in respect of Letters of Credit or otherwise held by the Credit Agreement Collateral Agent pursuant to Section 2.05 or 2.24 of the Credit Agreement (or any equivalent successor provision) shall be applied as specified in the Credit Agreement and will not constitute Shared Collateral.

Appears in 1 contract

Samples: Credit Agreement (Centurylink, Inc)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company or any other Grantor (including any adequate protection payments) or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution or payment (subject, in the case of any such distribution, payments, or proceeds, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds proceeds, payments, and distributions of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution or payment being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents, provided that following the commencement of any Insolvency or Liquidation Proceeding with respect to the Company or any other Grantor, solely as among the holders of First-Lien Obligations and solely for purposes of this clause SECOND and not any Secured Credit Documents, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the First-Lien Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of First-Lien Obligations of each Series of First-Lien Obligations shall include only the maximum amount of Post-Petition Interest on the First-Lien Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding; and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: Credit Agreement (Lamar Media Corp/De)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding, and notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Junior Lien Obligations granted on the Shared Collateral or the existence of any intervening third party Liens and notwithstanding any provisions of the Uniform Commercial Code of any jurisdictions, any applicable real estate laws, or any other circumstance whatsoever (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and (i) the Applicable Collateral Agent Authorized Representative or any First-Junior Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or (ii) any distribution is made in respect of any Shared Collateral in any Bankruptcy Case or other Insolvency or Liquidation Proceeding of the Company any Borrower or any other Grantor or (iii) any First-Junior Lien Secured Party receives any payment pursuant to the Senior/Junior Intercreditor Agreement, the ABL Intercreditor Agreement or any other intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral (including any amount paid under any title insurance policy or any insurance policy or in connection with any condemnation or eminent domain proceeding) by any First-Junior Lien Secured Party or received by the Applicable Collateral Agent Authorized Representative or any First-Junior Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral (including any amount paid under any title insurance policy) and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-any Senior Lien Obligations Secured Parties are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral (including any amount paid under any title insurance policy) and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.applied:

Appears in 1 contract

Samples: Junior Lien Term Loan Credit Agreement (Forterra, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company Borrower or any other Grantor (including any adequate protection payments) or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by the Controlling Collateral Agent or any First-Lien Secured Party on account of such enforcement of rights or remedies or distribution in respect thereof in any Insolvency or Liquidation Proceeding or payment received by the Applicable Controlling Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such payment, distribution, or proceeds, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment in full in cash of all amounts owing to each Collateral Agent (in its capacity as suchsuch and, in the case of the First Lien Credit Agreement Collateral Agent, in its capacity as First Lien Credit Agreement Administrative Agent) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full in cash of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents Documents, provided, that following the commencement of any Insolvency or Liquidation Proceeding with respect to the Borrower or any other Grantor, solely for purposes of this Section 2.01(a) and not any other Secured Credit Document, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the First-Lien Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of First-Lien Obligations of each Series of First-Lien Obligations shall include only the maximum amount of Post-Petition Interest allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceedings, and (iii) THIRD, after payment in full in cash of all First-Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. If, despite the provisions of this Section 2.01(a), any First-Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First-Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First-Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First-Lien Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority. (c) Notwithstanding anything in this Agreement, any Secured Debt Document or any other First-Lien Security Documents to the contrary, Collateral consisting of cash and cash equivalents pledged to secure First Lien Credit Agreement Obligations consisting of reimbursement obligations in respect of letters of credit or in respect of swing line loans or otherwise held by the First Lien Credit Agreement Collateral Agent or pursuant to Section 2.03, 2.06, 2.09, 2.16, 2.17 or Article 9 of the First Lien Credit Agreement (or any equivalent successor provision) shall be applied as specified in the First Lien Credit Agreement and will not constitute Shared Collateral.

Appears in 1 contract

Samples: Credit Agreement (Mercury Systems Inc)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party Authorized Representative is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) or payment (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such distribution or payment being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) on a ratable basis pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment the Discharge of all First-First Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the sameotherwise, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations Obligations, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. If, despite the provisions of this Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties for distribution in accordance with this Section 2.01(a). (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-First Lien Secured Party hereby agrees that (i) the Liens securing each Series of First-First Lien Obligations on any Shared Collateral shall be of equal prioritypriority and (ii) the benefits and proceeds of the Shared Collateral shall be shared among the First Lien Secured Parties as provided herein.

Appears in 1 contract

Samples: Indenture (Western Digital Corp)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit First Lien Documents to the contrary notwithstanding (but subject to Section 1.03Sections 2.01(b) and 2.11(b)), if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company or any other Grantor or any First-First Lien Secured Party Claimholder receives any payment pursuant to any intercreditor agreement (other than this Agreement) or otherwise with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral or Equity Release Proceeds received by any First-First Lien Secured Party Claimholder or received by the Applicable Collateral Agent or any First-First Lien Secured Party Claimholder pursuant to any such intercreditor agreement or otherwise with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately followingfollowing clause THIRD below) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) or otherwise (all proceeds of any sale, collection or other liquidation of any Collateral comprising either Shared Collateral or Equity Release Proceeds and all proceeds of any such distribution and any proceeds of any insurance covering the Shared Collateral received by the Applicable Collateral Agent and not returned to any Grantor under any First Lien Document being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to by the payment of all amounts owing to each Applicable Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.following order:

Appears in 1 contract

Samples: First Lien Term Loan Credit Agreement (Turning Point Brands, Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case of the Company Borrower or any other Grantor or any First-Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by the Controlling Collateral Agent or any First-Lien Secured Party on account of such enforcement of rights or remedies or received by the Applicable Controlling Collateral Agent or any First-Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the First-Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-Lien Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRD, after payment of all First-Lien Obligations, to the Company Borrower and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: Credit Agreement (Davita Healthcare Partners Inc.)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03)notwithstanding, if an Event of Default has occurred and is continuing, and the Applicable Collateral Agent or any First-First Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral by any First-First Lien Secured Party or received by the Applicable Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral Collateral, all Insurance Proceeds and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each the Collateral Agent (in its capacity as such) pursuant to the terms of this Agreement and any Secured Credit DocumentDocument or in connection with the transactions contemplated thereunder and hereunder, (ii) SECOND, subject to Section 1.03, to the payment in full of all Credit Agreement Obligations in accordance with the First-terms of the Credit Agreement in an amount not to exceed the Maximum Priority Payment Amount and (iii) THIRD, after the Credit Agreement Obligations have been repaid in an amount not less than and not greater than the Maximum Priority Payment Amount and the corresponding Commitments (as defined in the Credit Agreement) have been terminated by corresponding amounts, to the payment in full of all remaining First Lien Obligations of each Series Class on a ratable basis, with such Proceeds to be applied to basis based on the First-Lien Obligations relative amounts of a given Series the secured obligations in accordance with the terms of the applicable Secured Credit Documents and Documents, (iiiiv) THIRDFOURTH, after payment the Discharge of all First-First Lien ObligationsObligations (including the repayment in full in cash thereof and the termination of all commitments in connection therewith), to the Company holders of junior Liens on the Collateral and (v) FIFTH, thereafter to MDFC and the other Grantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, assigns or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-First Lien Obligations of any Series Class may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a2.01 (a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any SeriesClass. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series Class of First-First Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-First Lien Obligations of any Series Class or any other circumstance whatsoever (but, in each case, subject to Section 1.03)whatsoever, each First-First Lien Secured Party hereby agrees that the Liens securing each Series Class of First-First Lien Obligations on any Shared Collateral shall be of equal priority, subject to the payment priorities set forth in Section 2.01(a).

Appears in 1 contract

Samples: First Lien Intercreditor and Collateral Agency Agreement (Marina District Development Company, LLC)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Second Lien Documents to the contrary notwithstanding (but subject to Section 1.032.01(b)), if an Event of Default has occurred and is continuing, continuing and the Applicable Collateral Second Lien Agent or any First-Second Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, or any distribution is made to the Second Lien Agent or any Second Lien Secured Party in respect of any Shared Collateral in any Bankruptcy Case of any Grantor, or the Company Second Lien Agent or any other Grantor or any First-Second Lien Secured Party receives any payment pursuant to the Senior Lien Intercreditor Agreement or any other intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by the Second Lien Agent or any First-Second Lien Secured Party (and any distribution or other amount so received by the Applicable Collateral Second Lien Agent or any First-Second Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of in any such distribution (subject, in Bankruptcy Case or under the case of Senior Lien Intercreditor Agreement or any such distribution, to the sentence immediately following) to which the Firstother inter-Lien Obligations are entitled under any intercreditor creditor agreement (all such proceeds, distributions and other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution amounts being collectively referred to as “Proceeds”), shall be applied (i) by the Second Lien Agent in the order specified below: FIRST, to the payment of all reasonable costs and expenses and indemnification amounts owing incurred by the Second Lien Agent and any Authorized Representative and all fees owed to each Collateral them in connection with such collection or sale or otherwise in connection with this Agreement, any Second Lien Document or any of the Second Lien Obligations, including all court costs and the reasonable fees and expenses of agents and legal counsel, the repayment of all advances made by the Second Lien Agent (in its capacity as such) pursuant to the terms or any Authorized Representative hereunder or under any other Second Lien Document on behalf of any Secured Credit Grantor and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Second Lien Document, (ii) ; SECOND, subject to Section 1.03, to the payment in full of the First-Second Lien Obligations of each Series on a ratable basis, with such Proceeds (the amounts so applied to be applied to distributed among the First-Second Lien Obligations of a given Series Secured Parties pro rata in accordance with the terms respective amounts of the applicable Secured Credit Documents Second Lien Obligations owed to them on the date of any such distribution); and (iii) THIRD, after payment of all First-Lien Obligations, to the Company and the other Grantors or Grantors, their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same, or as a court of competent jurisdiction may otherwise direct. Notwithstanding . (b) It is the intent of the Second Lien Secured Parties of each Series that the holders of the Second Lien Obligations of such Series (and not the Second Lien Secured Parties of any other Series) bear the risk of (i) any determination by a court of competent jurisdiction that (x) any of the Second Lien Obligations of such Series are unenforceable under applicable law or are subordinated to any other obligations (other than another Series of Second Lien Obligations), (y) any of the Second Lien Obligations of such Series does not have an enforceable security interest in any of the Collateral securing any other Series of Second Lien Obligations and/or (z) any Person (other than any Authorized Representative or other Second Lien Secured Party and, without limiting the foregoing, with respect to after taking into account the effect of any applicable intercreditor agreement) has an interest in the Shared Collateral for which a third party (securing any other than a First-Lien Secured Party) has a lien or security interest obligations that is junior senior in priority to the security interest of any Lien on such Shared Collateral securing such Series of First-Second Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) junior to the security interest of Lien on such Shared Collateral securing any other Series of First-Second Lien Obligations (any such third partyinterest being referred to as an “Intervening Lien”, and any such Person being referred to as an “Intervening Creditor”), and (ii) the existence of any Collateral for any other Series of Second Lien Obligations that is not Shared Collateral (any condition referred to in the foregoing clauses (i) or (ii) with respect to any Series of Second Lien Obligations being referred to as an “Impairment” of such Series). In the event of any Impairment with respect to any Series of Second Lien Obligations, the results of such Impairment shall be borne solely by the holders of such Series of Second Lien Obligations, and the rights of the holders of such Series of Second Lien Obligations (including the right to receive distributions in respect of such Series of Second Lien Obligations pursuant to Section 2.01(a)) set forth herein shall be modified to the extent necessary so that the effects of such Impairment are borne solely by the holders of the Series of such Second Lien Obligations subject to such Impairment. Additionally, in the event the Second Lien Obligations of any Series are modified pursuant to applicable law (including pursuant to Section 1129 of the Bankruptcy Code), any reference to such Second Lien Obligations or the Second Lien Documents governing such Second Lien Obligations shall refer to such obligations or such documents as so modified. In furtherance of the foregoing, in the event any Series of Second Lien Obligations shall be subject to an Impairment in the form of an Intervening Lien of any Intervening Creditor, the value of any Shared Collateral or Proceeds which that are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the such Series of First-Second Lien Obligations with respect to which such Impairment existsObligations. (bc) It is acknowledged that the First-Second Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Second Lien Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Second Lien Secured Parties of any Series. (cd) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Second Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, jurisdiction or any other applicable law or the Secured Credit Second Lien Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.032.01(b)), each First-Second Lien Secured Party hereby agrees that the Liens securing each Series of First-Second Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: Second Lien Credit Agreement (Quicksilver Resources Inc)

Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Applicable Controlling Collateral Agent or any First-Lien Secured Party is taking action to enforce rights or remedies in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or Liquidation Proceeding of the Company any Obligor (including an adequate protection payments) or any other Grantor or any First-First Lien Secured Party receives any payment pursuant to any intercreditor agreement (other than this AgreementAgreement but including the Other Intercreditor Agreements) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral by any First-Lien Secured Party the Controlling Collateral Agent or received by the Applicable Controlling Collateral Agent or any First-First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, proceeds, or payments to the sentence immediately following) to which the First-First Lien Obligations are entitled under any intercreditor agreement (other than this AgreementAgreement but including the Other Intercreditor Agreements) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and any payment or distribution made in respect of Shared Collateral pursuant to any intercreditor agreement (including the Other Intercreditor Agreements) or in an Insolvency or Liquidation Proceeding and all proceeds of any “proceeds” (as such distribution term in defined in the New York UCC being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, (ii) SECOND, subject to Section 1.03, to the payment in full of the FirstFirst Lien Priority Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First Lien Priority Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents, provided that following the commencement of any Insolvency or Liquidation Proceeding of any Obligor, solely as among the First Lien Secured Parties and solely for purposes of this clause SECOND and not any Secured Credit Documents, in the event the value of the Shared Collateral is not sufficient for the entire amount of Post-Petition Interest on the First Lien Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, the amount of First Lien Obligations of each Series of First Lien Obligations shall include only the maximum amount of Post-Petition Interest on the First Lien Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency or Liquidation Proceeding, (iii) THIRD, to the payment in full of all Excess First Lien Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First-First Lien Obligations of a given Series constituting Excess First Lien Obligations in accordance with the terms of the applicable Secured Credit Documents and (iii) THIRDFOURTH, after payment of all First-First Lien Obligations, to the Company and the other Grantors Obligors or their successors or assigns, as their interests may appear, or to whosoever whomsoever may be lawfully entitled to receive the samesame pursuant to the Second Lien Intercreditor Agreement, if in effect, or otherwise, as a court of competent jurisdiction may direct. If, despite the provisions of this Section 2.01(a), any First Lien Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First Lien Obligations to which it is then entitled in accordance with this Section 2.01(a), such First Lien Secured Party shall hold such payment or recovery in trust for the benefit of all First Lien Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First-First Lien Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First-First Lien Obligations Obligations, after giving effect to the Second Lien Intercreditor Agreement, if applicable, but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-First Lien Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First-First Lien Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-First Lien Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-First Lien Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First-Lien Secured Party hereby agrees that the Liens securing each Series of First-Lien Obligations on any Shared Collateral shall be of equal priority.

Appears in 1 contract

Samples: Indenture (DISH Network CORP)