Priority of Liens. (a) Notwithstanding anything else contained herein or in any Security Document, it is the intent of the parties that: (i) this Agreement and the Security Documents create two separate and distinct Trust Estates and Liens: the Senior Trust Estate and Lien securing the payment and performance of the Priority Lien Obligations and the Junior Trust Estate and Lien securing the payment and performance of the Parity Lien Obligations and (ii) the Liens securing the Parity Lien Obligations are subject and subordinate to the Liens securing the Priority Lien Obligations. (b) The parties hereto agree that, after the date hereof and prior to the Discharge of Priority Lien Obligations, in no event shall the Parity Debt Representatives or any Parity Lien Secured Parties have a Lien on or security interest in any Collateral that is not subject and subordinate to the first priority lien of the Priority Lien Secured Parties. Notwithstanding (i) anything to the contrary contained in any Parity Lien Document and irrespective of the time, order or method of attachment or perfection of the security interests created by the Priority Lien Documents or the Parity Lien Documents, (ii) anything contained in any filing or agreement to which the Priority Lien Secured Parties or Parity Lien Secured Parties or any other party hereto may be a party and (iii) the rules for determining priority under the UCC or any other law governing the relative priorities of secured creditors, any security interest in any Collateral that is part of the Senior Trust Estate has and shall have priority over any security interest in such Collateral that is part of the Junior Trust Estate. (c) Whether or not any Bankruptcy Case or Insolvency Proceeding has been commenced by or against any Obligor, until the Discharge of Priority Lien Obligations, (i) the Parity Lien Secured Parties will not (A) exercise or seek to exercise any rights or exercise any remedies with respect to any Collateral that is subject to the Senior Trust Estate, (B) institute any action or proceeding with respect to such rights or remedies with respect to any Collateral, including any action of foreclosure, (C) contest, protest or object to any foreclosure proceeding or action brought by the Priority Lien Secured Parties or any other exercise by the Priority Lien Secured Parties of any rights and remedies under any Priority Lien Documents relating to the Collateral that is subject to the Senior Trust Estate, (D) object to the forbearance by the Priority Lien Secured Parties to the bringing or pursuing of any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral that is subject to the Senior Trust Estate, (E) take or receive from the Obligors, directly or indirectly, in cash or other property or by set off or in any other manner, the Collateral or any part thereof or proceeds therefrom in satisfaction of the Parity Lien Obligations, (F) contest or seek to invalidate any Liens or security interests securing the Priority Debt Obligations, or the perfection thereof, or the validity or enforceability of this Agreement, (G) take or permit any action prejudicial to or inconsistent with the priority position of the Senior Trust Estate over the Junior Trust Estate, (H) object to any adequate protection or similar relief requested and obtained by the Priority Lien Secured Parties in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor or (I) object to any consent or approval by the Priority Lien Secured Parties to the use of cash or other Collateral, or any similar relief, in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor, and (ii) the Priority Lien Secured Parties shall have the exclusive right to enforce rights and exercise remedies with respect to any Collateral that is part of the Senior Trust Estate, regardless of whether such Collateral may also be part of the Junior Trust Estate. Notwithstanding the foregoing, the Parity Lien Secured Parties may enforce rights, exercise remedies and take actions (A) without any condition or restriction whatsoever, at any time after the Discharge of Priority Lien Obligations, (B) as necessary to perfect a Lien upon any Collateral by any method of perfection except through possession or control or (C) as necessary to prove, preserve or protect (but not enforce) the Liens securing the Parity Lien Obligations. (d) In exercising rights and remedies with respect to the Collateral, the Priority Debt Representatives may enforce (or refrain from enforcing) the provisions of the Priority Lien Documents and exercise (or refrain from exercising) remedies thereunder or any such rights and remedies, all in such order and in such manner as they may determine in the exercise of their sole and exclusive discretion, including (i) the exercise or forebearance from exercise of all rights and remedies in respect of the Collateral and/or the Priority Lien Obligations, (ii) the enforcement or forbearance from enforcement of any Lien in respect of the Collateral, (iii) the release, with or without consideration, of the Collateral from the Senior Trust Estate, and, in connection with any such release, the concurrent release, with or without consideration (as determined by the Priority Lien Secured Parties), of such collateral from the Junior Trust Estate, (iv) the exercise or forebearance from exercise of rights and powers of a holder of shares of stock included in the Senior Trust Estate to the extent provided in the Security Documents, (v) the acceptance of the Collateral in full or partial satisfaction of the Priority Lien Obligations and (vi) the exercise or forebearance from exercise of all rights and remedies of a secured lender under the UCC or any similar law of any applicable jurisdiction or in equity. (e) Without in any way limiting the generality of the foregoing paragraphs, the Priority Lien Secured Parties may, at any time and from time to time, without the consent of or notice to the Parity Lien Secured Parties, without incurring responsibility to the Parity Lien Secured Parties and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder of the Parity Lien Secured Parties, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the Priority Lien Obligations, or otherwise amend or supplement in any manner the Priority Lien Obligations, or any instrument evidencing the Priority Lien Obligations or any agreement under which the Priority Lien Obligations are outstanding, (ii) release any Person or entity liable in any manner for the collection of the Priority Lien Obligations, (iii) release the Lien on any Collateral securing the Priority Lien Obligations and (iv) exercise or refrain from exercising any rights against any Obligor. (f) The doctrine of marshalling of assets or collateral or any other legal or equitable principle or doctrine which could otherwise, in any way, constrain, limit or affect the order or manner of the enforcement against any Person obligated for the Priority Lien Obligations or the liquidation of the Senior Trust Estate shall not be applicable to the Senior Trust Estate or to the rights of the Priority Lien Secured Parties under this Agreement.
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Priority of Liens. (a) Notwithstanding anything else contained herein the order or time of attachment, or the order, time or manner of perfection, or the order or time of filing or recordation of any document or instrument, or other method of perfecting a security interest in favor of each Creditor in any Security DocumentLender Priority Collateral, it is the intent and notwithstanding any conflicting terms or conditions which may be contained in any of the parties that: Agreements the following Lien priorities shall strictly apply in defining the respective Lien priorities of each Creditor in the Lender Priority Collateral:
(i) this Agreement and the Security Documents create two separate and distinct Trust Estates and Liensfirst: the Senior Trust Estate and Lien securing Liens upon such Lender Priority Collateral of Revolving Loan Agent to the payment and performance full extent of the Priority Lien Obligations and the Junior Trust Estate and Lien securing the payment and performance of the Parity Lien Obligations and Revolving Loan Debt;
(ii) second: the Liens securing the Parity Lien Obligations are subject and subordinate upon such Lender Priority Collateral of Cleveland to the full extent of the Cleveland Debt;
(iii) third: the Liens securing upon such Lender Priority Collateral of Ford to the full extent of the Ford Debt;
(iv) fourth: the Liens upon such Lender Priority Lien Obligations.Collateral of Cleveland Subsidiary to the full extent of the Cleveland Subsidiary Debt consisting of the Cleveland Subsidiary Inventory Payable;
(b) The parties hereto agree thatNotwithstanding the order or time of attachment, after or the date hereof and prior to order, time or manner of perfection, or the Discharge order or time of Priority Lien Obligationsfiling or recordation of any document or instrument, in no event shall the Parity Debt Representatives or any Parity Lien Secured Parties have other method of perfecting a Lien on or security interest in favor of each Creditor in any Collateral that is not subject Cleveland Subsidiary Priority Collateral, and subordinate to the first priority lien notwithstanding any conflicting terms or conditions which may be contained in any of the Agreements the following Lien priorities shall strictly apply in defining the respective Lien priorities of each Creditor in the Cleveland Subsidiary Priority Lien Secured Parties. Notwithstanding Collateral:
(i) anything first: the Liens upon such Cleveland Subsidiary Priority Collateral of Cleveland Subsidiary to the contrary contained in any Parity Lien Document and irrespective full extent of the time, order or method of attachment or perfection Cleveland Subsidiary Debt consisting of the security interests created by the Priority Lien Documents or the Parity Lien Documents, Cleveland Subsidiary Inventory Payable;
(ii) anything contained in any filing or agreement second: the Liens upon such Cleveland Subsidiary Priority Collateral of Revolving Loan Agent to which the Priority Lien Secured Parties or Parity Lien Secured Parties or any other party hereto may be a party and full extent of the Revolving Loan Debt;
(iii) third: the rules for determining priority under Liens upon such Cleveland Subsidiary Priority Collateral of Cleveland to the UCC or any other law governing the relative priorities of secured creditors, any security interest in any Collateral that is part full extent of the Senior Trust Estate has and shall have priority over any security interest in such Collateral that is part of the Junior Trust Estate.Cleveland Debt;
(c) Whether or not any Bankruptcy Case or Insolvency Proceeding has been commenced by or against any Obligor, until the Discharge of Priority Lien Obligations, (i) the Parity Lien Secured Parties will not (A) exercise or seek to exercise any rights or exercise any remedies with respect to any Collateral that is subject to the Senior Trust Estate, (B) institute any action or proceeding with respect to such rights or remedies with respect to any Collateral, including any action of foreclosure, (C) contest, protest or object to any foreclosure proceeding or action brought by the Priority Lien Secured Parties or any other exercise by the Priority Lien Secured Parties of any rights and remedies under any Priority Lien Documents relating to the Collateral that is subject to the Senior Trust Estate, (D) object to the forbearance by the Priority Lien Secured Parties to the bringing or pursuing of any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral that is subject to the Senior Trust Estate, (E) take or receive from the Obligors, directly or indirectly, in cash or other property or by set off or in any other manner, the Collateral or any part thereof or proceeds therefrom in satisfaction of the Parity Lien Obligations, (F) contest or seek to invalidate any Liens or security interests securing the Priority Debt Obligations, or the perfection thereof, or the validity or enforceability of this Agreement, (G) take or permit any action prejudicial to or inconsistent with the priority position of the Senior Trust Estate over the Junior Trust Estate, (H) object to any adequate protection or similar relief requested and obtained by the Priority Lien Secured Parties in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor or (I) object to any consent or approval by the Priority Lien Secured Parties to the use of cash or other Collateral, or any similar relief, in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor, and (ii) the Priority Lien Secured Parties shall have the exclusive right to enforce rights and exercise remedies with respect to any Collateral that is part of the Senior Trust Estate, regardless of whether such Collateral may also be part of the Junior Trust Estate. Notwithstanding the foregoing, the Parity Lien Secured Parties may enforce rights, exercise remedies and take actions (A) without any condition or restriction whatsoever, at any time after the Discharge of Priority Lien Obligations, (B) as necessary to perfect a Lien upon any Collateral by any method of perfection except through possession or control or (C) as necessary to prove, preserve or protect (but not enforce) the Liens securing the Parity Lien Obligations.
(d) In exercising rights and remedies with respect to the Collateral, the Priority Debt Representatives may enforce (or refrain from enforcing) the provisions of the Priority Lien Documents and exercise (or refrain from exercising) remedies thereunder or any such rights and remedies, all in such order and in such manner as they may determine in the exercise of their sole and exclusive discretion, including (i) the exercise or forebearance from exercise of all rights and remedies in respect of the Collateral and/or the Priority Lien Obligations, (ii) the enforcement or forbearance from enforcement of any Lien in respect of the Collateral, (iii) the release, with or without consideration, of the Collateral from the Senior Trust Estate, and, in connection with any such release, the concurrent release, with or without consideration (as determined by the Priority Lien Secured Parties), of such collateral from the Junior Trust Estate, (iv) fourth: the exercise or forebearance from exercise Liens upon such Cleveland Subsidiary Priority Collateral of rights and powers of a holder of shares of stock included in the Senior Trust Estate Ford to the full extent provided in the Security Documents, (v) the acceptance of the Collateral in full or partial satisfaction of the Priority Lien Obligations and (vi) the exercise or forebearance from exercise of all rights and remedies of a secured lender under the UCC or any similar law of any applicable jurisdiction or in equityFord Debt.
(e) Without in any way limiting the generality of the foregoing paragraphs, the Priority Lien Secured Parties may, at any time and from time to time, without the consent of or notice to the Parity Lien Secured Parties, without incurring responsibility to the Parity Lien Secured Parties and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder of the Parity Lien Secured Parties, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the Priority Lien Obligations, or otherwise amend or supplement in any manner the Priority Lien Obligations, or any instrument evidencing the Priority Lien Obligations or any agreement under which the Priority Lien Obligations are outstanding, (ii) release any Person or entity liable in any manner for the collection of the Priority Lien Obligations, (iii) release the Lien on any Collateral securing the Priority Lien Obligations and (iv) exercise or refrain from exercising any rights against any Obligor.
(f) The doctrine of marshalling of assets or collateral or any other legal or equitable principle or doctrine which could otherwise, in any way, constrain, limit or affect the order or manner of the enforcement against any Person obligated for the Priority Lien Obligations or the liquidation of the Senior Trust Estate shall not be applicable to the Senior Trust Estate or to the rights of the Priority Lien Secured Parties under this Agreement.
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Samples: Intercreditor and Subordination Agreement (Rouge Industries Inc)
Priority of Liens. Notwithstanding the date, manner or order of perfection of the Liens granted to Agent or Trustee, and notwithstanding any provision of the Uniform Commercial Code, any other applicable law or decision, or the Bank Documents or Noteholder Documents, or whether Agent or Trustee holds possession of all or any part of the Collateral, or the provisions of any financing statement, the following, as between Agent and Trustee, shall be the relative priorities with respect to the various Liens of Agent and Trustee in the Collateral, whether before, after or during any Proceeding:
(a) Notwithstanding anything else contained herein Agent shall have a first and prior Lien on the Bank Priority Collateral to secure the Bank Obligations, which Lien shall be superior to any Lien or other interest of Trustee in any Security Documentthe Bank Priority Collateral, it is such Liens and other interests of Trustee being subordinate to the intent Lien of Agent in the parties that: (i) this Agreement and the Security Documents create two separate and distinct Trust Estates and Liens: the Senior Trust Estate and Bank Priority Collateral; provided, however, that such Lien securing the payment and performance Bank Obligations shall only be superior to the Lien of the Priority Lien Obligations and the Junior Trust Estate and Lien securing the payment and performance Trustee on, or other interest of the Parity Lien Trustee in, the Bank Priority Collateral to the extent that the Bank Obligations do not exceed the sum of $160,000,000 plus all accrued but unpaid interest thereon (including any interest accruing during any Proceeding) plus all costs and (ii) expenses of collecting or enforcing the Bank Obligations or the Liens securing of Agent in the Parity Lien Obligations are subject and subordinate Collateral, including reasonable attorneys' fees; provided further, that, to the Liens securing extent that the Bank Obligations exceed such sum, the Lien of Agent in the Bank Priority Collateral shall be PARI PASSU with the Lien Obligations.of the Trustee on, or other interest of the Trustee in, the Bank Priority Collateral; and
(b) The parties hereto agree that, after the date hereof Trustee shall have a first and prior Lien on the Noteholder Priority Collateral to secure the Discharge of Priority Lien Noteholder Obligations, which Lien shall be superior to any Lien or other interest of Agent in no event shall the Parity Debt Representatives or any Parity Lien Secured Parties have a Lien on or security interest in any Collateral that is not subject Noteholder Priority Collateral, such Liens and other interests of Agent being subordinate to the first priority lien Lien of Trustee in the Noteholder Priority Collateral; provided, however, that such Lien securing the Noteholder Obligations shall only be superior to the Lien of Agent on, or other interest of Agent in, the Noteholder Priority Collateral to the extent that the Noteholder Obligations do not exceed the sum of $125,000,000 plus all accrued but unpaid interest thereon (including any interest accruing during any Proceeding) plus all costs and expenses of collecting or enforcing the Noteholder Obligations or the Liens of the Priority Lien Secured Parties. Notwithstanding (i) anything to Trustee in the contrary contained in any Parity Lien Document and irrespective of the time, order or method of attachment or perfection of the security interests created by the Priority Lien Documents or the Parity Lien Documents, (ii) anything contained in any filing or agreement to which the Priority Lien Secured Parties or Parity Lien Secured Parties or any other party hereto may be a party and (iii) the rules for determining priority under the UCC or any other law governing the relative priorities of secured creditors, any security interest in any Collateral that is part of the Senior Trust Estate has and shall have priority over any security interest in such Collateral that is part of the Junior Trust Estate.
(c) Whether or not any Bankruptcy Case or Insolvency Proceeding has been commenced by or against any Obligor, until the Discharge of Priority Lien Obligations, (i) the Parity Lien Secured Parties will not (A) exercise or seek to exercise any rights or exercise any remedies with respect to any Collateral that is subject to the Senior Trust Estate, (B) institute any action or proceeding with respect to such rights or remedies with respect to any Collateral, including any action of foreclosurereasonable attorneys' fees; provided further, (C) contestthat, protest or object to any foreclosure proceeding or action brought by the Priority Lien Secured Parties or any other exercise by the Priority Lien Secured Parties of any rights and remedies under any Priority Lien Documents relating to the Collateral that is subject to the Senior Trust Estate, (D) object to the forbearance by the Priority Lien Secured Parties to the bringing or pursuing of any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral that is subject to the Senior Trust Estate, (E) take or receive from the Obligors, directly or indirectly, in cash or other property or by set off or in any other manner, the Collateral or any part thereof or proceeds therefrom in satisfaction of the Parity Lien Obligations, (F) contest or seek to invalidate any Liens or security interests securing the Priority Debt Obligations, or the perfection thereof, or the validity or enforceability of this Agreement, (G) take or permit any action prejudicial to or inconsistent with the priority position of the Senior Trust Estate over the Junior Trust Estate, (H) object to any adequate protection or similar relief requested and obtained by the Priority Lien Secured Parties in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor or (I) object to any consent or approval by the Priority Lien Secured Parties to the use of cash or other Collateral, or any similar relief, in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor, and (ii) the Priority Lien Secured Parties shall have the exclusive right to enforce rights and exercise remedies with respect to any Collateral that is part of the Senior Trust Estate, regardless of whether such Collateral may also be part of the Junior Trust Estate. Notwithstanding the foregoing, the Parity Lien Secured Parties may enforce rights, exercise remedies and take actions (A) without any condition or restriction whatsoever, at any time after the Discharge of Priority Lien Obligations, (B) as necessary to perfect a Lien upon any Collateral by any method of perfection except through possession or control or (C) as necessary to prove, preserve or protect (but not enforce) the Liens securing the Parity Lien Obligations.
(d) In exercising rights and remedies with respect to the Collateral, the Priority Debt Representatives may enforce (or refrain from enforcing) the provisions of the Priority Lien Documents and exercise (or refrain from exercising) remedies thereunder or any such rights and remedies, all in such order and in such manner as they may determine in the exercise of their sole and exclusive discretion, including (i) the exercise or forebearance from exercise of all rights and remedies in respect of the Collateral and/or the Priority Lien Obligations, (ii) the enforcement or forbearance from enforcement of any Lien in respect of the Collateral, (iii) the release, with or without consideration, of the Collateral from the Senior Trust Estate, and, in connection with any such release, the concurrent release, with or without consideration (as determined by the Priority Lien Secured Parties), of such collateral from the Junior Trust Estate, (iv) the exercise or forebearance from exercise of rights and powers of a holder of shares of stock included in the Senior Trust Estate to the extent provided that the Noteholder Obligations exceed such sum, the Lien of the Trustee in the Security DocumentsNoteholder Priority Collateral shall be PARI PASSU with the Lien of Agent on, (v) the acceptance or other interest of the Collateral in full or partial satisfaction of the Priority Lien Obligations and (vi) the exercise or forebearance from exercise of all rights and remedies of a secured lender under the UCC or any similar law of any applicable jurisdiction or in equity.
(e) Without in any way limiting the generality of the foregoing paragraphsAgent in, the Noteholder Priority Lien Secured Parties may, at any time and from time to time, without the consent of or notice to the Parity Lien Secured Parties, without incurring responsibility to the Parity Lien Secured Parties and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder of the Parity Lien Secured Parties, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the Priority Lien Obligations, or otherwise amend or supplement in any manner the Priority Lien Obligations, or any instrument evidencing the Priority Lien Obligations or any agreement under which the Priority Lien Obligations are outstanding, (ii) release any Person or entity liable in any manner for the collection of the Priority Lien Obligations, (iii) release the Lien on any Collateral securing the Priority Lien Obligations and (iv) exercise or refrain from exercising any rights against any ObligorCollateral.
(f) The doctrine of marshalling of assets or collateral or any other legal or equitable principle or doctrine which could otherwise, in any way, constrain, limit or affect the order or manner of the enforcement against any Person obligated for the Priority Lien Obligations or the liquidation of the Senior Trust Estate shall not be applicable to the Senior Trust Estate or to the rights of the Priority Lien Secured Parties under this Agreement.
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Priority of Liens. Section 2.1. Priority of Liens of Term Debt Secured Parties in respect of Term Debt Priority Collateral.
(a) Notwithstanding anything else contained herein All Liens now or hereafter existing in any Security Document, it is the intent favor of the parties that: (i) this Agreement Collateral Agent, any Secured Party or any other Person on any Term Debt Priority Collateral to secure the Revolving Debt shall be subject, subordinate and the Security Documents create two separate junior in all respects and distinct Trust Estates and Liens: the Senior Trust Estate and Lien securing the payment and performance of the Priority Lien Obligations and the Junior Trust Estate and Lien securing the payment and performance of the Parity Lien Obligations and (ii) the Liens securing the Parity Lien Obligations are subject and subordinate at all times to the Liens securing or interests now or hereafter existing in favor of the Collateral Agent, any Secured Party or any other Person thereon to secure the Term Debt and (b) all Liens now or hereafter existing in favor of the Collateral Agent, any Secured Party or any other Person on any Term Debt Priority Lien ObligationsCollateral to secure the Term Debt shall be senior at all times to the Liens or interests now or hereafter existing in favor of the Collateral Agent, any Secured Party or any other Person thereon to secure the Revolving Debt, in each case, regardless of the fact that all Secured Obligations are secured by the same Collateral Documents, the time or order of attachment or perfection, any provisions to the contrary in any of the Collateral Documents or any other circumstances whatsoever.
Section 2.2. Priority of Liens of Revolving Debt Secured Parties in respect of Revolving Debt Priority Collateral.
(a) All Liens now or hereafter existing in favor of the Collateral Agent, any Secured Party or any other Person on any Revolving Debt Priority Collateral to secure the Term Debt shall be subject, subordinate and junior in all respects and at all times to the Liens or interests now or hereafter existing in favor of the Collateral Agent, any Secured Party or any other Person thereon to secure the Revolving Debt and (b) The parties hereto agree thatall Liens now or hereafter existing in favor of the Collateral Agent, after any Secured Party or any other Person on any Revolving Debt Priority Collateral to secure the date hereof and prior Revolving Debt shall be senior at all times to the Discharge Liens or interests now or hereafter existing in favor of Priority Lien Obligationsthe Collateral Agent, any Secured Party or any other Person thereon to secure the Term Debt, in no event shall the Parity Debt Representatives or any Parity Lien Secured Parties have a Lien on or security interest in any Collateral that is not subject and subordinate to the first priority lien each case, regardless of the Priority Lien fact that all Secured Parties. Notwithstanding (i) anything Obligations are secured by the same Collateral Documents, the time or order of attachment or perfection, any provisions to the contrary contained in any Parity Lien Document and irrespective of the timeCollateral Documents or any other circumstances whatsoever.
Section 2.3. Liens of Secured Parties in respect of Patent and Trademark Collateral are Pari Passu. All Liens now or hereafter existing in favor of the Collateral Agent, any Secured Party or any other Person on any Patent and Trademark Collateral to secure the Term Debt or the Revolving Debt shall be PARI PASSU in all respects and at all times, regardless of the fact that all Secured Obligations are secured by the same Collateral Documents, the time or order or method of attachment or perfection perfection, any provisions to the contrary in any of the security interests created by the Priority Lien Collateral Documents or the Parity Lien Documents, (ii) anything contained in any filing or agreement to which the Priority Lien Secured Parties or Parity Lien Secured Parties or any other party hereto may be a party and (iii) the rules for determining priority under the UCC or any other law governing the relative priorities of secured creditors, any security interest in any Collateral that is part of the Senior Trust Estate has and shall have priority over any security interest in such Collateral that is part of the Junior Trust Estatecircumstances whatsoever.
(c) Whether or not any Bankruptcy Case or Insolvency Proceeding has been commenced by or against any Obligor, until the Discharge of Priority Lien Obligations, (i) the Parity Lien Secured Parties will not (A) exercise or seek to exercise any rights or exercise any remedies with respect to any Collateral that is subject to the Senior Trust Estate, (B) institute any action or proceeding with respect to such rights or remedies with respect to any Collateral, including any action of foreclosure, (C) contest, protest or object to any foreclosure proceeding or action brought by the Priority Lien Secured Parties or any other exercise by the Priority Lien Secured Parties of any rights and remedies under any Priority Lien Documents relating to the Collateral that is subject to the Senior Trust Estate, (D) object to the forbearance by the Priority Lien Secured Parties to the bringing or pursuing of any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral that is subject to the Senior Trust Estate, (E) take or receive from the Obligors, directly or indirectly, in cash or other property or by set off or in any other manner, the Collateral or any part thereof or proceeds therefrom in satisfaction of the Parity Lien Obligations, (F) contest or seek to invalidate any Liens or security interests securing the Priority Debt Obligations, or the perfection thereof, or the validity or enforceability of this Agreement, (G) take or permit any action prejudicial to or inconsistent with the priority position of the Senior Trust Estate over the Junior Trust Estate, (H) object to any adequate protection or similar relief requested and obtained by the Priority Lien Secured Parties in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor or (I) object to any consent or approval by the Priority Lien Secured Parties to the use of cash or other Collateral, or any similar relief, in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor, and (ii) the Priority Lien Secured Parties shall have the exclusive right to enforce rights and exercise remedies with respect to any Collateral that is part of the Senior Trust Estate, regardless of whether such Collateral may also be part of the Junior Trust Estate. Notwithstanding the foregoing, the Parity Lien Secured Parties may enforce rights, exercise remedies and take actions (A) without any condition or restriction whatsoever, at any time after the Discharge of Priority Lien Obligations, (B) as necessary to perfect a Lien upon any Collateral by any method of perfection except through possession or control or (C) as necessary to prove, preserve or protect (but not enforce) the Liens securing the Parity Lien Obligations.
(d) In exercising rights and remedies with respect to the Collateral, the Priority Debt Representatives may enforce (or refrain from enforcing) the provisions of the Priority Lien Documents and exercise (or refrain from exercising) remedies thereunder or any such rights and remedies, all in such order and in such manner as they may determine in the exercise of their sole and exclusive discretion, including (i) the exercise or forebearance from exercise of all rights and remedies in respect of the Collateral and/or the Priority Lien Obligations, (ii) the enforcement or forbearance from enforcement of any Lien in respect of the Collateral, (iii) the release, with or without consideration, of the Collateral from the Senior Trust Estate, and, in connection with any such release, the concurrent release, with or without consideration (as determined by the Priority Lien Secured Parties), of such collateral from the Junior Trust Estate, (iv) the exercise or forebearance from exercise of rights and powers of a holder of shares of stock included in the Senior Trust Estate to the extent provided in the Security Documents, (v) the acceptance of the Collateral in full or partial satisfaction of the Priority Lien Obligations and (vi) the exercise or forebearance from exercise of all rights and remedies of a secured lender under the UCC or any similar law of any applicable jurisdiction or in equity.
(e) Without in any way limiting the generality of the foregoing paragraphs, the Priority Lien Secured Parties may, at any time and from time to time, without the consent of or notice to the Parity Lien Secured Parties, without incurring responsibility to the Parity Lien Secured Parties and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder of the Parity Lien Secured Parties, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the Priority Lien Obligations, or otherwise amend or supplement in any manner the Priority Lien Obligations, or any instrument evidencing the Priority Lien Obligations or any agreement under which the Priority Lien Obligations are outstanding, (ii) release any Person or entity liable in any manner for the collection of the Priority Lien Obligations, (iii) release the Lien on any Collateral securing the Priority Lien Obligations and (iv) exercise or refrain from exercising any rights against any Obligor.
(f) The doctrine of marshalling of assets or collateral or any other legal or equitable principle or doctrine which could otherwise, in any way, constrain, limit or affect the order or manner of the enforcement against any Person obligated for the Priority Lien Obligations or the liquidation of the Senior Trust Estate shall not be applicable to the Senior Trust Estate or to the rights of the Priority Lien Secured Parties under this Agreement.
Appears in 1 contract
Priority of Liens. (a) Notwithstanding anything else contained herein or in any Security Document, it is the intent of the parties that: (i) this Agreement and the Security Documents create two separate and distinct Trust Estates and Liens: the Senior Trust Estate and Lien securing the payment and performance of the Priority Lien Obligations and the Junior Trust Estate and Lien securing the payment and performance of the Parity Lien Obligations and (ii) the Liens securing the Parity Lien Obligations are subject and subordinate to the Liens securing the Priority Lien Obligations.
(b) The parties hereto agree that, after the date hereof and prior to the Discharge of Priority Lien Obligations, in no event shall the Parity Debt Representatives or any Parity Lien Secured Parties have a Lien on or security interest in any Collateral that is not subject and subordinate to the first priority lien of the Priority Lien Secured Parties. Notwithstanding (i) anything to the contrary contained in any Parity Lien Document and irrespective of the time, order or method of attachment or perfection of the security interests created by the Priority Lien Documents or the Parity Lien Documents, (ii) anything contained in any filing or agreement to which the Priority Lien Secured Parties or Parity Lien Secured Parties or any other party hereto may be a party and (iii) the rules for determining priority under the UCC or any other law governing the relative priorities of secured creditors, any security interest in any Collateral that is part of the Senior Trust Estate has and shall have priority over any security interest in such Collateral that is part of the Junior Trust Estate.
(c) Whether or not any Bankruptcy Case or Insolvency Proceeding has been commenced by or against any Obligor, until the Discharge of Priority Lien Obligations, (i) the Parity Lien Secured Parties will not (A) exercise or seek to exercise any rights or exercise any remedies with respect to any Collateral that is subject to the Senior Trust Estate, (B) institute any action or proceeding with respect to such rights or remedies with respect to any Collateral, including any action of foreclosure, (C) contest, protest or object to any foreclosure proceeding or action brought by the Priority Lien Secured Parties or any other exercise by the Priority Lien Secured Parties of any rights and remedies under any Priority Lien Documents relating to the Collateral that is subject to the Senior Trust Estate, (D) object to the forbearance by the Priority Lien Secured Parties to the bringing or pursuing of any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral that is subject to the Senior Trust Estate, (E) take or receive from the Obligors, directly or indirectly, in cash or other property or by set off or in any other manner, the Collateral or any part thereof or proceeds therefrom in satisfaction of the Parity Lien Obligations, (F) contest or seek to invalidate any Liens or security interests securing the Priority Debt Obligations, or the perfection thereof, or the validity or enforceability of this Agreement, (G) take or permit any action prejudicial to or inconsistent with the priority position of the Senior Trust Estate over the Junior Trust Estate, (H) object to any adequate protection or similar relief requested and obtained by the Priority Lien Secured Parties in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor or (I) object to any consent or approval by the Priority Lien Secured Parties to the use of cash or other Collateral, or any similar relief, in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor, and (ii) the Priority Lien Secured Parties shall have the exclusive right to enforce rights and exercise remedies with respect to any Collateral that is part of the Senior Trust Estate, regardless of whether such Collateral may also be part of the Junior Trust Estate. Notwithstanding the foregoing, the Parity Lien Secured Parties may enforce rights, exercise remedies and take actions (A) without any condition or restriction whatsoever, at any time after the Discharge of Priority Lien Obligations, (B) as necessary to perfect a Lien upon any Collateral by any method of perfection except through possession or control or (C) as necessary to prove, preserve or protect (but not enforce) the Liens securing the Parity Lien Obligations.
(d) In exercising rights and remedies with respect to the Collateral, the Priority Debt Representatives may enforce (or refrain from enforcing) the provisions of the Priority Lien Documents and exercise (or refrain from exercising) remedies thereunder or any such rights and remedies, all in such order and in such manner as they may determine in the exercise of their sole and exclusive discretion, including (i) the exercise or forebearance from exercise of all rights and remedies in respect of the Collateral and/or the Priority Lien Obligations, (ii) the enforcement or forbearance from enforcement of any Lien in respect of the Collateral, (iii) the release, with or without consideration, of the Collateral from the Senior Trust Estate, and, in connection with any such release, the concurrent release, with or without consideration (as determined by the Priority Lien Secured Parties), of such collateral from the Junior Trust Estate, (iv) the exercise or forebearance from exercise of rights and powers of a holder of shares of stock included in the Senior Trust Estate to the extent provided in the Security Documents, (v) the acceptance of the Collateral in full or partial satisfaction of the Priority Lien Obligations and (vi) the exercise or forebearance from exercise of all rights and remedies of a secured lender under the UCC or any similar law of any applicable jurisdiction or in equity.
(e) Without in any way limiting the generality of the foregoing paragraphs, the Priority Lien Secured Parties may, at any time and from time to time, without the consent of or notice to the Parity Lien Secured Parties, without incurring responsibility to the Parity Lien Secured Parties and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder of the Parity Lien Secured Parties, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the Priority Lien Obligations, or otherwise amend or supplement in any manner the Priority Lien Obligations, or any instrument evidencing the Priority Lien Obligations or any agreement under which the Priority Lien Obligations are outstanding, (ii) release any Person person or entity liable in any manner for the collection of the Priority Lien Obligations, (iii) release the Lien on any Collateral securing the Priority Lien Obligations and (iv) exercise or refrain from exercising any rights against any Obligor.
(f) The doctrine of marshalling of assets or collateral or any other legal or equitable principle or doctrine which could otherwise, in any way, constrain, limit or affect the order or manner of the enforcement against any Person person obligated for the Priority Lien Obligations or the liquidation of the Senior Trust Estate shall not be applicable to the Senior Trust Estate or to the rights of the Priority Lien Secured Parties under this Agreement.
Appears in 1 contract
Priority of Liens. (a) Notwithstanding anything else contained herein or in any other Security Document, it is the intent of the parties that: :
(i1) this Agreement and the other Security Documents create two separate and distinct Trust Estates and Liens: the Senior Trust Estate and Lien securing the payment and performance of the Priority Lien Obligations and the Junior Trust Estate and Lien securing the payment and performance of the Parity Lien Obligations and Obligations; and
(ii2) the Liens securing the Parity Lien Obligations are subject and subordinate to the Liens securing the Priority Lien Obligations.
(b) The parties hereto agree that, after the date hereof and prior to the Discharge of Priority Lien Obligations, in no event shall will the Parity Debt Representatives or any Parity Lien Secured Parties have a Lien on or security interest in any Collateral that is not subject and subordinate to the first priority senior lien of the Priority Lien Secured Parties. Notwithstanding (i) anything to the contrary contained in any Parity Lien Document and irrespective of the time, order or method of attachment or perfection of the security interests created by the Priority Lien Documents or the Parity Lien Documents, (ii) anything contained in any filing or agreement to which the Priority Lien Secured Parties or Parity Lien Secured Parties or any other party hereto may be a party and (iii) the rules for determining priority under the UCC or any other law governing the relative priorities of secured creditors, any security interest in any Collateral that is part of the Senior Trust Estate has and shall have priority over any security interest in such Collateral that is part of the Junior Trust Estate.
(c) Whether or not any Bankruptcy Case or Insolvency Proceeding has been commenced by or against any Obligor, until the Discharge of Priority Lien Obligations, :
(i1) the Parity Lien Secured Parties will not not:
(A) exercise or seek to exercise any rights or exercise any remedies with respect to any Collateral that is subject to the Senior Trust Estate, (B) institute any action or proceeding with respect to such rights or remedies with respect to any Collateral, including any action of foreclosure, (C) contest, protest or object to any foreclosure proceeding or action brought by the Priority Lien Secured Parties or any other exercise by the Priority Lien Secured Parties of any rights and remedies under any Priority Lien Documents relating to the Collateral that is subject to the Senior Trust Estate, (D) object to the forbearance by the Priority Lien Secured Parties to the bringing or pursuing of any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral that is subject to the Senior Trust Estate, (E) take or receive from the Obligors, directly or indirectlyrequest judicial relief, in cash or other property or by set off an Insolvency Proceeding or in any other mannercourt, that would hinder, delay, limit or prohibit the Collateral lawful exercise or enforcement of any part thereof right or proceeds therefrom remedy otherwise available to the holders of Priority Lien Obligations in satisfaction respect of the Priority Liens or that would limit, invalidate, avoid or set aside any Priority Lien or subordinate the Priority Liens to the Parity Liens or grant the Parity Liens equal ranking to the Priority Liens;
(B) oppose or otherwise contest any motion for relief from the automatic stay or for any injunction against foreclosure or enforcement of Priority Liens made by any holder of Priority Lien Obligations in any Insolvency Proceedings;
(C) oppose or otherwise contest any lawful exercise by any holder of Priority Lien Obligations of the right to credit bid Priority Lien Debt at any sale in foreclosure of Priority Liens; or
(D) oppose or otherwise contest any other request for judicial relief made in any court by any holder of Priority Lien Obligations relating to the lawful enforcement of any Priority Lien; provided, however, that notwithstanding the foregoing, both before and during an Insolvency Proceeding, the Parity Lien ObligationsSecured Parties may take any actions and exercise any and all rights that would otherwise be available to a holder of unsecured claims, (F) contest or seek to invalidate including, without limitation, the commencement of Insolvency Proceedings against any Liens or security interests securing Obligors in accordance with applicable law; except, that the Priority Debt Obligations, or the perfection thereof, or the validity or enforceability of this Agreement, (G) take or permit any action prejudicial to or inconsistent with the priority position of the Senior Trust Estate over the Junior Trust Estate, (H) object to any adequate protection or similar relief requested and obtained by the Priority Parity Lien Secured Parties in any Insolvency Proceeding may not challenge the validity, enforceability, perfection or Bankruptcy Case with respect to any Obligor or (I) object to any consent or approval by priority of the Priority Lien Secured Parties to the use of cash or other Collateral, or any similar relief, in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor, and Liens; and
(ii2) the Priority Lien Secured Parties shall will have the exclusive right to enforce rights and exercise remedies with respect to any Collateral that is part of the Senior Trust Estate, regardless of whether such Collateral may also be part of the Junior Trust Estate. Notwithstanding the foregoing, the Parity Lien Secured Parties may enforce rights, exercise remedies and take actions actions:
(A) without any condition or restriction whatsoever, at any time after the Discharge of Priority Lien Obligations, ;
(B) as necessary to perfect a Lien upon redeem any Collateral in a creditor's redemption permitted by law or to deliver any method notice or demand necessary to enforce (subject to the prior Discharge of perfection except through possession Priority Lien Obligations) any right to claim, take or control receive proceeds of Collateral remaining after the Discharge of Priority Lien Obligations in the event of foreclosure or other enforcement of any prior Lien;
(C) as necessary to perfect or establish the priority (subject to Priority Liens) of the Parity Liens upon any Collateral, except through possession or control; or
(D) as necessary to create, prove, preserve or protect (but not enforce) the Parity Liens securing the Parity Lien Obligationsupon any Collateral.
(d) In exercising rights and remedies with respect to the Collateral, the Priority Debt Representatives may enforce (or refrain from enforcing) the provisions of the Priority Lien Documents and exercise (or refrain from exercising) remedies thereunder or any such rights and remedies, all in such order and in such manner as they may determine in the exercise of their sole and exclusive discretion, including including:
(i1) the exercise or forebearance from exercise of all rights and remedies in respect of the Collateral and/or the Priority Lien Obligations, ;
(ii2) the enforcement or forbearance forebearance from enforcement of any Lien in respect of the Collateral, ;
(iii) the release, with or without consideration, of the Collateral from the Senior Trust Estate, and, in connection with any such release, the concurrent release, with or without consideration (as determined by the Priority Lien Secured Parties), of such collateral from the Junior Trust Estate, (iv3) the exercise or forebearance from exercise of rights and powers of a holder of shares of stock included in the Senior Trust Estate to the extent provided in the Security Documents, ;
(v4) the acceptance of the Collateral in full or partial satisfaction of the Priority Lien Obligations and Obligations; and
(vi5) the exercise or forebearance from exercise of all rights and remedies of a secured lender under the UCC or any similar law of any applicable jurisdiction or in equity.
(e) Without in any way limiting the generality of the foregoing paragraphs, the Priority Lien Secured Parties may, at any time and from time to time, without the consent of or notice to the Parity Lien Secured Parties, without incurring responsibility to the Parity Lien Secured Parties and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder of the Parity Lien Secured Parties, do any one or more of the following: :
(i1) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the Priority Lien Obligations, or otherwise amend or supplement in any manner the Priority Lien Obligations, or any instrument evidencing the Priority Lien Obligations or any agreement under which the Priority Lien Obligations are outstanding, ;
(ii2) release any Person or entity liable in any manner for the collection of the Priority Lien Obligations, ;
(iii3) release the Lien on any Collateral securing the Priority Lien Obligations and Obligations; and
(iv4) exercise or refrain from exercising any rights against any Obligor.
(f) The doctrine Prior to the Discharge of Priority Lien Obligations, the Parity Lien Secured Parties and the Collateral Trustee may not assert or enforce any right of marshalling of assets or collateral or any other legal or equitable principle or doctrine which could otherwiseaccorded to a junior lienholder, in any way, constrain, limit or affect the order or manner of the enforcement as against any Person obligated for the Priority Lien Obligations or the liquidation of the Senior Trust Estate shall not be applicable to the Senior Trust Estate or to the rights of the Priority Lien Secured Parties (in their capacity as priority lienholders), under this Agreementequitable principles. Parity Lien Secured Parties may assert their right under Section 9-608(a)(1)(c) of the UCC or any other applicable law or principles of equity to any remaining proceeds of a disposition of Collateral by the Collateral Trustee or a Priority Lien Secured Party after a Discharge of Priority Lien Obligations.
Appears in 1 contract
Samples: Collateral Trust Agreement (Midwest Generation LLC)
Priority of Liens. (a) Notwithstanding anything else contained herein or in any Security Document, it It is the intent of the parties hereto that: :
(i) this Agreement and the Security Documents create two three separate and distinct Trust Estates and Liens: the Senior First Priority Trust Estate and Lien securing the payment and performance of the First Priority Lien Obligations and Obligations, the Junior Second Priority Trust Estate and Lien securing the payment and performance of the Parity Second Priority Lien Obligations and the Other Junior Lien Trust Estate and Lien securing the payment and performance of the Other Junior Lien Obligations;
(ii) (x) the Liens securing the Parity Second Priority Lien Obligations are subject and subordinate to the Liens securing the Permitted Prior Liens and First Priority Lien Obligations, and (y) the Liens securing the Other Junior Lien Obligations are subject and subordinate to the Liens securing the Permitted Prior Liens and the First Priority Lien Obligations and the Liens securing the Second Priority Lien Obligations; and
(iii) subject to the provisions of this Agreement relating to the rights to proceeds of the sale of property subject to the Liens described herein, any sale of property pursuant to a Lien described hereunder permitted under the applicable Secured Debt Document or under Section 2.7(a)(iv) hereof will extinguish all Liens subordinate to the Lien pursuant to which such sale was made, and any property so sold will be sold free and clear of all such subordinate Liens.
(b) The parties hereto agree that, after the date hereof and prior to the Discharge of Priority Lien Obligations, in no event shall the Parity will (other than with respect to Escrowed Interest):
(i) The First Priority Debt Representatives Representative or any Parity Lien First Priority Secured Parties have a Lien on or security interest in any Pledged Collateral that is not subject to the Second Priority Lien of the Second Priority Secured Parties;
(ii) the Second Priority Debt Representatives or any Second Priority Secured Parties have a Lien on or security interest in any Pledged Collateral that is not subject and subordinate to the first priority lien First Priority Lien of the First Priority Lien Secured Parties. Notwithstanding (i) anything to the contrary contained in any Parity Lien Document and irrespective of the time, order or method of attachment or perfection of the security interests created by the Priority Lien Documents or the Parity Lien Documents, (ii) anything contained in any filing or agreement to which the Priority Lien Secured Parties or Parity Lien Secured Parties or any other party hereto may be a party and ; and
(iii) the rules for determining priority under the UCC Other Junior Debt Representatives or any other law governing the relative priorities of secured creditors, any Other Junior Secured Parties have a Lien on or security interest in any Pledged Collateral that is part not subject and subordinate to the First Priority Lien of the Senior Trust Estate has and shall have priority over any security interest in such Collateral that is part of the Junior Trust Estate.
(c) Whether or not any Bankruptcy Case or Insolvency Proceeding has been commenced by or against any Obligor, until the Discharge of First Priority Lien Obligations, (i) the Parity Lien Secured Parties will not (A) exercise or seek to exercise any rights or exercise any remedies with respect to any Collateral that is subject to the Senior Trust Estate, (B) institute any action or proceeding with respect to such rights or remedies with respect to any Collateral, including any action of foreclosure, (C) contest, protest or object to any foreclosure proceeding or action brought by the Priority Lien Secured Parties or any other exercise by the Priority Lien Secured Parties of any rights and remedies under any Priority Lien Documents relating to the Collateral that is subject to the Senior Trust Estate, (D) object to the forbearance by the Priority Lien Secured Parties to the bringing or pursuing of any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral that is subject to the Senior Trust Estate, (E) take or receive from the Obligors, directly or indirectly, in cash or other property or by set off or in any other manner, the Collateral or any part thereof or proceeds therefrom in satisfaction of the Parity Lien Obligations, (F) contest or seek to invalidate any Liens or security interests securing the Priority Debt Obligations, or the perfection thereof, or the validity or enforceability of this Agreement, (G) take or permit any action prejudicial to or inconsistent with the priority position of the Senior Trust Estate over the Junior Trust Estate, (H) object to any adequate protection or similar relief requested and obtained by the Priority Lien Secured Parties in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor or (I) object to any consent or approval by the Priority Lien Secured Parties to the use of cash or other Collateral, or any similar relief, in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor, and (ii) the Priority Lien Secured Parties shall have the exclusive right to enforce rights and exercise remedies with respect to any Collateral that is part of the Senior Trust Estate, regardless of whether such Collateral may also be part of the Junior Trust Estate. Notwithstanding the foregoing, the Parity Lien Secured Parties may enforce rights, exercise remedies and take actions (A) without any condition or restriction whatsoever, at any time after the Discharge of Priority Lien Obligations, (B) as necessary to perfect a Lien upon any Collateral by any method of perfection except through possession or control or (C) as necessary to prove, preserve or protect (but not enforce) the Liens securing the Parity Lien Obligations.
(d) In exercising rights and remedies with respect to the Collateral, the Priority Debt Representatives may enforce (or refrain from enforcing) the provisions of the Priority Lien Documents and exercise (or refrain from exercising) remedies thereunder or any such rights and remedies, all in such order and in such manner as they may determine in the exercise of their sole and exclusive discretion, including (i) the exercise or forebearance from exercise of all rights and remedies in respect of the Collateral and/or the Priority Lien Obligations, (ii) the enforcement or forbearance from enforcement of any Lien in respect of the Collateral, (iii) the release, with or without consideration, of the Collateral from the Senior Trust Estate, and, in connection with any such release, the concurrent release, with or without consideration (as determined by the Priority Lien Secured Parties), of such collateral from the Junior Trust Estate, (iv) the exercise or forebearance from exercise of rights and powers of a holder of shares of stock included in the Senior Trust Estate to the extent provided in the Security Documents, (v) the acceptance of the Collateral in full or partial satisfaction of the Priority Lien Obligations and (vi) the exercise or forebearance from exercise of all rights and remedies of a secured lender under the UCC or any similar law of any applicable jurisdiction or in equity.
(e) Without in any way limiting the generality of the foregoing paragraphs, the Priority Lien Secured Parties may, at any time and from time to time, without the consent of or notice to the Parity Lien Secured Parties, without incurring responsibility to the Parity Lien Secured Parties and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder Second Priority Lien of the Parity Lien Second Priority Secured Parties, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the Priority Lien Obligations, or otherwise amend or supplement in any manner the Priority Lien Obligations, or any instrument evidencing the Priority Lien Obligations or any agreement under which the Priority Lien Obligations are outstanding, (ii) release any Person or entity liable in any manner for the collection of the Priority Lien Obligations, (iii) release the Lien on any Collateral securing the Priority Lien Obligations and (iv) exercise or refrain from exercising any rights against any Obligor.
(f) The doctrine of marshalling of assets or collateral or any other legal or equitable principle or doctrine which could otherwise, in any way, constrain, limit or affect the order or manner of the enforcement against any Person obligated for the Priority Lien Obligations or the liquidation of the Senior Trust Estate shall not be applicable to the Senior Trust Estate or to the rights of the Priority Lien Secured Parties under this Agreement.
Appears in 1 contract
Samples: Collateral Trust Agreement (ICO Global Communications (Holdings) LTD)
Priority of Liens. (a) Notwithstanding anything else contained herein or in any Security other Collateral Document, it is the intent of the parties Parties that: :
(i) this Agreement and the Security other Collateral Documents create two separate and distinct Trust Estates and Liens: (A) the Senior Trust Estate and Lien securing the payment and performance of the Priority Lien Obligations and (B) the Junior Trust Estate and Lien securing the payment and performance of the Parity Lien Obligations and Obligations; and
(ii) the Liens securing the Parity Lien Obligations are subject and subordinate to the Liens securing the Priority Lien Obligations.
(b) The parties hereto Parties agree that, pursuant to the Secured Debt Documents, the Obligors may grant Liens on portions of the Collateral that will be senior to the Liens securing the Secured Obligations. If the Obligor satisfies the conditions in the Secured Debt Document and any requirements of Priority Lien Debt for the granting of such Liens, certified to the Collateral Agent in an Officer’s Certificate, the Collateral Agent will execute such agreements, certificates, filings and other documents as are reasonably requested by such Obligor in order to recognize or establish the ranking of such Liens.
(c) The Parties agree that, after the date hereof and prior to the Discharge of Priority Lien Obligations, in no event shall will the Parity Debt Representatives or any Parity Lien Secured Parties have a Lien on or security interest in any Collateral that is not subject and subordinate to the first priority lien senior Lien of the Priority Lien Secured Parties. Notwithstanding (i) anything to the contrary contained in any Parity Lien Document and irrespective of the time, order or method of attachment or perfection of the security interests created by the Priority Lien Documents or the Parity Lien Documents, (ii) anything contained in any filing or agreement to which the Priority Lien Secured Parties or Parity Lien Secured Parties or any other party hereto may be a party and (iii) the rules for determining priority under the UCC or any other law governing the relative priorities of secured creditors, any security interest in any Collateral that is part of the Senior Trust Estate has and shall have priority over any security interest in such Collateral that is part of the Junior Trust Estate.
(cd) Whether or not any Bankruptcy Case or Both before and during an Insolvency Proceeding has been commenced by or against any ObligorProceeding, until the Discharge of Priority Lien Obligations, :
(i) the Parity Lien Secured Parties will not not:
(A) request judicial relief, in an Insolvency Proceeding or in any other court, that would hinder, delay, limit or prohibit the lawful exercise or seek enforcement of any right or remedy otherwise available to exercise any rights or exercise any remedies with respect to any Collateral that is subject to the Senior Trust Estate, (B) institute any action or proceeding with respect to such rights or remedies with respect to any Collateral, including any action of foreclosure, (C) contest, protest or object to any foreclosure proceeding or action brought by the Priority Lien Secured Parties or that would limit, invalidate, avoid or set aside any other exercise Priority Lien or subordinate the Priority Liens to the Parity Liens or grant the Parity Liens equal ranking to the Priority Liens;
(B) oppose or otherwise contest any motion for relief from the automatic stay or for any injunction against foreclosure or enforcement of Priority Liens made by the any Priority Lien Secured Parties of Party in any rights and remedies under Insolvency Proceedings;
(C) oppose or otherwise contest any lawful exercise by any Priority Lien Documents Secured Party of the right to credit bid Priority Lien Debt at any sale in foreclosure of Priority Liens; or
(D) oppose or otherwise contest any other request for judicial relief made in any court by any Priority Lien Secured Party relating to the Collateral that is subject to lawful enforcement of any Priority Lien; provided that, notwithstanding the Senior Trust Estateforegoing, (D) object to both before and during an Insolvency Proceeding, the forbearance by the Priority Parity Lien Secured Parties may take any actions and exercise any and all rights that would otherwise be available to a holder of unsecured claims, including the bringing or pursuing commencement of any foreclosure proceeding or action Insolvency Proceedings against the Company or any other exercise of any rights or remedies relating to the Collateral Obligor in accordance with applicable law; except, that is subject to the Senior Trust Estate, (E) take or receive from the Obligors, directly or indirectly, in cash or other property or by set off or in any other manner, the Collateral or any part thereof or proceeds therefrom in satisfaction of the Parity Lien ObligationsSecured Parties may not challenge the validity, (F) contest enforceability, perfection or seek to invalidate any Liens or security interests securing priority of the Priority Debt Obligations, or the perfection thereof, or the validity or enforceability of this Agreement, (G) take or permit any action prejudicial to or inconsistent with the priority position of the Senior Trust Estate over the Junior Trust Estate, (H) object to any adequate protection or similar relief requested and obtained by the Priority Lien Secured Parties in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor or (I) object to any consent or approval by the Priority Lien Secured Parties to the use of cash or other Collateral, or any similar relief, in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor, and Liens; and
(ii) the Priority Lien Secured Parties shall will have the exclusive right to enforce rights and exercise remedies with respect to any Collateral that is part of the Senior Trust Estate, regardless of whether such Collateral may also be part of the Junior Trust EstateEstate (including, without limitation, the exclusive right to authorize or direct the Collateral Agent to enforce, collect or realize on any Collateral or exercise any other right or remedy with respect to the Collateral) and neither the Indenture Trustees nor the holders of Notes or other Parity Lien Obligations may authorize or direct the Collateral Agent with respect to such matters. Notwithstanding the foregoing, the Parity Lien Secured Parties may may, enforce rights, exercise remedies and take actions actions:
(A) without any condition or restriction whatsoever, at any time after the Discharge of Priority Lien Obligations, ;
(B) as necessary to perfect a Lien upon redeem any Collateral in a creditor’s redemption permitted by law or to deliver any method notice or demand necessary to enforce (subject to the prior Discharge of perfection except through possession Priority Lien Obligations) any right to claim, take or control receive proceeds of Collateral remaining after the Discharge of Priority Lien Obligations in the event of foreclosure or other enforcement of any Lien;
(C) as necessary to perfect or establish the priority (subject to Priority Liens) of the Parity Liens upon any Collateral, except through possession or control; or
(D) as necessary to create, prove, preserve or protect (but not enforce) the Parity Liens securing the Parity Lien Obligationsupon any Collateral.
(de) In exercising rights and remedies with respect to the Collateral, the Priority Debt Representatives may enforce (or refrain from enforcing) the provisions of the Priority Lien Documents and exercise (or refrain from exercising) remedies thereunder or any such rights and remedies, all in such order and in such manner as they may determine in the exercise of their sole and exclusive discretion, including including:
(i) the exercise or forebearance forbearance from exercise of all rights and remedies in respect of the Collateral and/or the Priority Lien Obligations, ;
(ii) the enforcement or forbearance from enforcement of any Lien in respect of the Collateral, ;
(iii) the release, with or without consideration, of the Collateral from the Senior Trust Estate, and, in connection with any such release, the concurrent release, with or without consideration (as determined by the Priority Lien Secured Parties), of such collateral from the Junior Trust Estate, (iv) the exercise or forebearance forbearance from exercise of rights and powers of a holder of shares of stock included in the Senior Trust Estate to the extent provided in the Security Collateral Documents, ;
(viv) the acceptance of the Collateral in full or partial satisfaction of the Priority Lien Obligations and Obligations; and
(viv) the exercise or forebearance forbearance from exercise of all rights and remedies of a secured lender under the UCC PPSA or any similar law of any applicable jurisdiction or in equity.
(ef) Without in any way limiting the generality of the foregoing paragraphs, the Priority Lien Secured Parties may, at any time and from time to time, without the consent of or notice to the Parity Lien Secured Parties, without incurring responsibility to the Parity Lien Secured Parties and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder of the Parity Lien Secured Parties, do any one or more of the following: :
(i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the Priority Lien Obligations, or otherwise amend or supplement in any manner the Priority Lien Obligations, or any instrument evidencing the Priority Lien Obligations or any agreement under which the Priority Lien Obligations are outstanding, (ii) release any Person or entity liable in any manner for the collection of the Priority Lien Obligations, ;
(iiiii) release the Lien on any Collateral securing the Priority Lien Obligations and Obligations; and
(iviii) exercise or refrain from exercising any rights against any Obligor.
(fg) The doctrine Prior to the Discharge of Priority Lien Obligations, the Parity Lien Secured Parties and the Collateral Agent may not assert or enforce any right of marshalling of assets or collateral or any other legal or equitable principle or doctrine which could otherwiseaccorded to a junior lienholder, in any way, constrain, limit or affect the order or manner of the enforcement as against any Person obligated for the Priority Lien Obligations or the liquidation of the Senior Trust Estate shall not be applicable to the Senior Trust Estate or to the rights of the Priority Lien Secured Parties (in their capacity as holders of Priority Liens), under this Agreementequitable principles.
Appears in 1 contract
Priority of Liens. (a) Notwithstanding anything else contained herein or in any other Security Document, it is the intent of the parties that: :
(i1) this Agreement and the other Security Documents create two separate and distinct Trust Estates and Liens: the Senior Trust Estate and Lien securing the payment and performance of the Priority Lien Obligations and the Junior Trust Estate and Lien securing the payment and performance of the Parity Lien Obligations and Obligations; and
(ii2) the Liens securing the Parity Lien Obligations are subject and subordinate to the Liens securing the Priority Lien Obligations.
(b) The parties hereto agree that, after the date hereof and prior to the Discharge of Priority Lien Obligations, in no event shall will the Parity Debt Representatives or any Parity Lien Secured Parties have a Lien on or security interest in any Collateral that is not subject and subordinate to the first priority senior lien of the Priority Lien Secured Parties. Notwithstanding (i) anything to the contrary contained in any Parity Lien Document and irrespective of the time, order or method of attachment or perfection of the security interests created by the Priority Lien Documents or the Parity Lien Documents, (ii) anything contained in any filing or agreement to which the Priority Lien Secured Parties or Parity Lien Secured Parties or any other party hereto may be a party and (iii) the rules for determining priority under the UCC or any other law governing the relative priorities of secured creditors, any security interest in any Collateral that is part of the Senior Trust Estate has and shall have priority over any security interest in such Collateral that is part of the Junior Trust Estate.
(c) Whether or not any Bankruptcy Case or Insolvency Proceeding has been commenced by or against any Obligor, until the Discharge of Priority Lien Obligations, :
(i1) the Parity Lien Secured Parties will not not:
(A) exercise or seek to exercise any rights or exercise any remedies with respect to any Collateral that is subject to the Senior Trust Estate, (B) institute any action or proceeding with respect to such rights or remedies with respect to any Collateral, including any action of foreclosure, (C) contest, protest or object to any foreclosure proceeding or action brought by the Priority Lien Secured Parties or any other exercise by the Priority Lien Secured Parties of any rights and remedies under any Priority Lien Documents relating to the Collateral that is subject to the Senior Trust Estate, (D) object to the forbearance by the Priority Lien Secured Parties to the bringing or pursuing of any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral that is subject to the Senior Trust Estate, (E) take or receive from the Obligors, directly or indirectlyrequest judicial relief, in cash or other property or by set off an Insolvency Proceeding or in any other mannercourt, that would hinder, delay, limit or prohibit the Collateral lawful exercise or enforcement of any part thereof right or proceeds therefrom remedy otherwise available to the holders of Priority Lien Obligations in satisfaction respect of the Priority Liens or that would limit, invalidate, avoid or set aside any Priority Lien or subordinate the Priority Liens to the Parity Liens or grant the Parity Liens equal ranking to the Priority Liens;
(B) oppose or otherwise contest any motion for relief from the automatic stay or for any injunction against foreclosure or enforcement of Priority Liens made by any holder of Priority Lien Obligations in any Insolvency Proceedings;
(C) oppose or otherwise contest any lawful exercise by any holder of Priority Lien Obligations of the right to credit bid Priority Lien Debt at any sale in foreclosure of Priority Liens; or
(D) oppose or otherwise contest any other request for judicial relief made in any court by any holder of Priority Lien Obligations relating to the lawful enforcement of any Priority Lien; provided, however, that notwithstanding the foregoing, both before and during an Insolvency Proceeding, the Parity Lien ObligationsSecured Parties may take any actions and exercise any and all rights that would otherwise be available to a holder of unsecured claims, (F) contest or seek to invalidate including, without limitation, the commencement of Insolvency Proceedings against any Liens or security interests securing Obligors in accordance with applicable law; except, that the Priority Debt Obligations, or the perfection thereof, or the validity or enforceability of this Agreement, (G) take or permit any action prejudicial to or inconsistent with the priority position of the Senior Trust Estate over the Junior Trust Estate, (H) object to any adequate protection or similar relief requested and obtained by the Priority Parity Lien Secured Parties in any Insolvency Proceeding may not challenge the validity, enforceability, perfection or Bankruptcy Case with respect to any Obligor or (I) object to any consent or approval by priority of the Priority Lien Secured Parties to the use of cash or other Collateral, or any similar relief, in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor, and Liens; and
(ii2) the Priority Lien Secured Parties shall will have the exclusive right to enforce rights and exercise remedies with respect to any Collateral that is part of the Senior Trust Estate, regardless of whether such Collateral may also be part of the Junior Trust Estate. Notwithstanding the foregoing, the Parity Lien Secured Parties may enforce rights, exercise remedies and take actions actions:
(A) without any condition or restriction whatsoever, at any time after the Discharge of Priority Lien Obligations, ;
(B) as necessary to perfect a Lien upon redeem any Collateral in a creditor's redemption permitted by law or to deliver any method notice or demand necessary to enforce (subject to the prior Discharge of perfection except through possession Priority Lien Obligations) any right to claim, take or control receive proceeds of Collateral remaining after the Discharge of Priority Lien Obligations in the event of foreclosure or other enforcement of any prior Lien;
(C) as necessary to perfect or establish the priority (subject to Priority Liens) of the Parity Liens upon any Collateral, except through possession or control; or
(D) as necessary to create, prove, preserve or protect (but not enforce) the Parity Liens securing the Parity Lien Obligationsupon any Collateral.
(d) In exercising rights and remedies with respect to the Collateral, the Priority Debt Representatives may enforce (or refrain from enforcing) the provisions of the Priority Lien Documents and exercise (or refrain from exercising) remedies thereunder or any such rights and remedies, all in such order and in such manner as they may determine in the exercise of their sole and exclusive discretion, including including:
(i1) the exercise or forebearance from exercise of all rights and remedies in respect of the Collateral and/or the Priority Lien Obligations, ;
(ii2) the enforcement or forbearance forebearance from enforcement of any Lien in respect of the Collateral, ;
(iii) the release, with or without consideration, of the Collateral from the Senior Trust Estate, and, in connection with any such release, the concurrent release, with or without consideration (as determined by the Priority Lien Secured Parties), of such collateral from the Junior Trust Estate, (iv3) the exercise or forebearance from exercise of rights and powers of a holder of shares of stock included in the Senior Trust Estate to the extent provided in the Security Documents, ;
(v4) the acceptance of the Collateral in full or partial satisfaction of the Priority Lien Obligations and Obligations; and
(vi5) the exercise or forebearance from exercise of all rights and remedies of a secured lender under the UCC or any similar law of any applicable jurisdiction or in equity.
(e) Without in any way limiting the generality of the foregoing paragraphs, the Priority Lien Secured Parties may, at any time and from time to time, without the consent of or notice to the Parity Lien Secured Parties, without incurring responsibility to the Parity Lien Secured Parties and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder of the Parity Lien Secured Parties, do any one or more of the following: :
(i1) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the Priority Lien Obligations, or otherwise amend or supplement in any manner the Priority Lien Obligations, or any instrument evidencing the Priority Lien Obligations or any agreement under which the Priority Lien Obligations are outstanding, ;
(ii2) release any Person or entity liable in any manner for the collection of the Priority Lien Obligations, ;
(iii3) release the Lien on any Collateral securing the Priority Lien Obligations and Obligations; and
(iv4) exercise or refrain from exercising any rights against any Obligor.
(f) The doctrine Prior to the Discharge of Priority Lien Obligations, the Parity Lien Secured Parties and the Parity Collateral Trustee may not assert or enforce any right of marshalling of assets or collateral or any other legal or equitable principle or doctrine which could otherwiseaccorded to a junior lienholder, in any way, constrain, limit or affect the order or manner of the enforcement as against any Person obligated for the Priority Lien Obligations or the liquidation of the Senior Trust Estate shall not be applicable to the Senior Trust Estate or to the rights of the Priority Lien Secured Parties (in their capacity as priority lienholders), under this Agreementequitable principles. Parity Lien Secured Parties may assert their right under Section 9-608(a)(1)(c) of the UCC or any other applicable law or principles of equity to any remaining proceeds of a disposition of Collateral by the Priority Collateral Trustee or a Priority Lien Secured Party after a Discharge of Priority Lien Obligations.
Appears in 1 contract
Samples: Collateral Trust Agreement (Midwest Generation LLC)
Priority of Liens. (a) Notwithstanding anything else contained herein or in any Security other Collateral Document, it is the intent of the parties Parties that: :
(i) this Agreement and the Security other Collateral Documents create two separate and distinct Trust Estates and Liens: (A) the Senior Trust Estate and Lien securing the payment and performance of the Priority Lien Obligations and (B) the Junior Trust Estate and Lien securing the payment and performance of the Parity Lien Obligations and Obligations; and
(ii) the Liens securing the Parity Lien Obligations are subject and subordinate to the Liens securing the Priority Lien Obligations.
(b) The parties hereto Parties agree that, pursuant to the Indenture, the Borrower and each Secured Obligations Guarantor may grant Liens on portions of the Collateral that will be senior to the Liens securing the Secured Obligations. If the Borrower and each Secured Obligations Guarantor satisfies the conditions in the Indenture and any requirements of Priority Lien Debt for the granting of such Liens, certified to the Collateral Agent in an Officer’s Certificate, the Collateral Agent will execute such agreements, certificates, filings and other documents as are reasonably requested by the Borrower in order to recognize or establish the ranking of such Liens.
(c) The Parties agree that, after the date hereof and prior to the Discharge of Priority Lien Obligations, in no event shall will the Parity Debt Representatives or any Parity Lien Secured Parties have a Lien on or security interest in any Collateral that is not subject and subordinate to the first priority lien senior Lien of the Priority Lien Secured Parties. Notwithstanding (i) anything to the contrary contained in any Parity Lien Document and irrespective of the time, order or method of attachment or perfection of the security interests created by the Priority Lien Documents or the Parity Lien Documents, (ii) anything contained in any filing or agreement to which the Priority Lien Secured Parties or Parity Lien Secured Parties or any other party hereto may be a party and (iii) the rules for determining priority under the UCC or any other law governing the relative priorities of secured creditors, any security interest in any Collateral that is part of the Senior Trust Estate has and shall have priority over any security interest in such Collateral that is part of the Junior Trust Estate.
(cd) Whether or not any Bankruptcy Case or Both before and during an Insolvency Proceeding has been commenced by or against any ObligorProceeding, until the Discharge of Priority Lien Obligations, :
(i) the Parity Lien Secured Parties will not not:
(A) request judicial relief, in an Insolvency Proceeding or in any other court, that would hinder, delay, limit or prohibit the lawful exercise or seek enforcement of any right or remedy otherwise available to exercise any rights or exercise any remedies with respect to any Collateral that is subject to the Senior Trust Estate, (B) institute any action or proceeding with respect to such rights or remedies with respect to any Collateral, including any action of foreclosure, (C) contest, protest or object to any foreclosure proceeding or action brought by the Priority Lien Secured Parties or that would limit, invalidate, avoid or set aside any Priority Lien or subordinate the Priority Liens to the Parity Liens or grant the Parity Liens equal ranking to the Priority Liens;
(B) oppose or otherwise contest any motion for relief from the automatic stay or for any injunction against foreclosure or enforcement of Priority Liens made by any Priority Lien Secured Party in any Insolvency Proceedings;
(C) oppose or otherwise contest any lawful exercise by any Priority Lien Secured Party of the right to credit bid Priority Lien Debt at any sale in foreclosure of Priority Liens; or
(D) oppose or otherwise contest any other request for judicial relief made in any court by any Priority Lien Secured Party relating to the lawful enforcement of any Priority Lien; provided that, notwithstanding the foregoing, both before and during an Insolvency Proceeding, the Parity Lien Secured Parties may take any actions and exercise by any and all rights that would otherwise be available to a holder of unsecured claims, including the commencement of Insolvency Proceedings against the Borrower or any other Obligor in accordance with applicable law; except, that the Parity Lien Secured Parties may not challenge the validity, enforceability, perfection or priority of the Priority Liens; and
(ii) subject to the rights of the holder of Permitted Prior Liens, the Priority Lien Secured Parties of any rights and remedies under any Priority Lien Documents relating to the Collateral that is subject to the Senior Trust Estate, (D) object to the forbearance by the Priority Lien Secured Parties to the bringing or pursuing of any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral that is subject to the Senior Trust Estate, (E) take or receive from the Obligors, directly or indirectly, in cash or other property or by set off or in any other manner, the Collateral or any part thereof or proceeds therefrom in satisfaction of the Parity Lien Obligations, (F) contest or seek to invalidate any Liens or security interests securing the Priority Debt Obligations, or the perfection thereof, or the validity or enforceability of this Agreement, (G) take or permit any action prejudicial to or inconsistent with the priority position of the Senior Trust Estate over the Junior Trust Estate, (H) object to any adequate protection or similar relief requested and obtained by the Priority Lien Secured Parties in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor or (I) object to any consent or approval by the Priority Lien Secured Parties to the use of cash or other Collateral, or any similar relief, in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor, and (ii) the Priority Lien Secured Parties shall will have the exclusive right to enforce rights and exercise remedies with respect to any Collateral that is part of the Senior Trust Estate, regardless of whether such Collateral may also be part of the Junior Trust EstateEstate (including, without limitation, the exclusive right to authorize or direct the Collateral Agent to enforce, collect or realize on any Collateral or exercise any other right or remedy with respect to the Collateral) and neither the Indenture Trustee nor the holders of Notes or other Parity Lien Obligations may authorize or direct the Collateral Agent with respect to such matters. Notwithstanding the foregoing, the Parity Lien Secured Parties may may, subject to the rights of the holders of other Permitted Prior Liens, enforce rights, exercise remedies and take actions actions:
(A) without any condition or restriction whatsoever, at any time after the Discharge of Priority Lien Obligations, ;
(B) as necessary to perfect a Lien upon redeem any Collateral in a creditor’s redemption permitted by law or to deliver any method notice or demand necessary to enforce (subject to the prior Discharge of perfection except through possession Priority Lien Obligations) any right to claim, take or control receive proceeds of Collateral remaining after the Discharge of Priority Lien Obligations in the event of foreclosure or other enforcement of any Lien;
(C) as necessary to perfect or establish the priority (subject to Priority Liens) of the Parity Liens upon any Collateral, except through possession or control; or
(D) as necessary to create, prove, preserve or protect (but not enforce) the Parity Liens securing the Parity Lien Obligationsupon any Collateral.
(de) In exercising rights and remedies with respect to the Collateral, the Priority Debt Representatives may enforce (or refrain from enforcing) the provisions of the Priority Lien Documents and exercise (or refrain from exercising) remedies thereunder or any such rights and remedies, all in such order and in such manner as they may determine in the exercise of their sole and exclusive discretion, including including:
(i) the exercise or forebearance forbearance from exercise of all rights and remedies in respect of the Collateral and/or the Priority Lien Obligations, ;
(ii) the enforcement or forbearance from enforcement of any Lien in respect of the Collateral, ;
(iii) the release, with or without consideration, of the Collateral from the Senior Trust Estate, and, in connection with any such release, the concurrent release, with or without consideration (as determined by the Priority Lien Secured Parties), of such collateral from the Junior Trust Estate, (iv) the exercise or forebearance forbearance from exercise of rights and powers of a holder of shares of stock included in the Senior Trust Estate to the extent provided in the Security Collateral Documents, ;
(viv) the acceptance of the Collateral in full or partial satisfaction of the Priority Lien Obligations and Obligations; and
(viv) the exercise or forebearance forbearance from exercise of all rights and remedies of a secured lender under the UCC PPSA or any similar law of any applicable jurisdiction or in equity.
(ef) Without in any way limiting the generality of the foregoing paragraphs, the Priority Lien Secured Parties may, at any time and from time to time, without the consent of or notice to the Parity Lien Secured Parties, without incurring responsibility to the Parity Lien Secured Parties and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder of the Parity Lien Secured Parties, do any one or more of the following: :
(i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the Priority Lien Obligations, or otherwise amend or supplement in any manner the Priority Lien Obligations, or any instrument evidencing the Priority Lien Obligations or any agreement under which the Priority Lien Obligations are outstanding, (ii) release any Person or entity liable in any manner for the collection of the Priority Lien Obligations, ;
(iiiii) release the Lien on any Collateral securing the Priority Lien Obligations and Obligations; and
(iviii) exercise or refrain from exercising any rights against any Obligor.
(fg) The doctrine Prior to the Discharge of Priority Lien Obligations, the Parity Lien Secured Parties and the Collateral Agent may not assert or enforce any right of marshalling of assets or collateral or any other legal or equitable principle or doctrine which could otherwiseaccorded to a junior lienholder, in any way, constrain, limit or affect the order or manner of the enforcement as against any Person obligated for the Priority Lien Obligations or the liquidation of the Senior Trust Estate shall not be applicable to the Senior Trust Estate or to the rights of the Priority Lien Secured Parties (in their capacity as holders of Priority Liens), under this Agreementequitable principles.
Appears in 1 contract
Priority of Liens. (a) Notwithstanding anything else contained herein or in any that the Security DocumentDocuments provide for the grant by the Grantors of Liens on the Collateral to the Administrative Agent to secure all the Obligations for the ratable benefit of the Secured Parties, it is the intent each of the parties that: (i) hereto and, by acceptance of the benefits of this Agreement and the Security Documents, each Secured Party agrees that (i) the parties intend that the Security Documents shall be construed to create, and shall be deemed to create two separate and distinct Trust Estates and Liens: as between the Senior Trust Estate and Lien Lenders, first-priority Liens securing the payment and performance of the First Priority Lien Secured Obligations and the Junior Trust Estate and Lien second-priority Liens securing the payment Second Priority Secured Obligations, and, accordingly, (ii) all Liens on the Collateral (A) securing the First Priority Secured Obligations shall be and performance of remain first-priority Liens, senior in all respects and prior to all Liens on the Parity Lien Collateral securing the Second Priority Secured Obligations and (iiB) the Liens securing the Parity Second Priority Secured Obligations shall be and remain second-priority Liens, junior in all respects to all Liens on the Collateral securing the First Priority Secured Obligations, in each case whether or not any such Liens are subordinated to any other Lien securing any obligation of the Parent Borrower or any Subsidiary Guarantor. In that connection, and notwithstanding the date, manner or order of grant, attachment or perfection of any financing statement or any Liens granted to the Administrative Agent or the Secured Parties under, or any other provision of, the Security Documents or the Existing Credit Agreement (or any actual or alleged defect or deficiency in any of the foregoing) and notwithstanding any provision of the Uniform Commercial Code as enacted by any state or any applicable law or any other circumstance whatsoever, each Second Priority Secured Party hereby agrees that (x) any Lien on the Collateral securing any First Priority Secured Obligations are subject now or hereafter held by or on behalf of the Administrative Agent or any First Priority Secured Party shall be senior in all respects and subordinate shall be a first-priority Lien, prior to any Lien on the Collateral securing any of the Second Priority Secured Obligations, and (y) any Lien on the Collateral securing any Second Priority Secured Obligations now or hereafter held by or on behalf of the Administrative Agent or any Second Priority Secured Party shall be junior in all respects to the Liens on the Collateral securing the First Priority Lien ObligationsSecured Obligations and shall be a second-priority Lien.
(b) The parties hereto agree thatSecond Priority Secured Parties acknowledge that a portion of the First Priority Secured Obligations represent Indebtedness that is revolving in nature and that the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed, after and that the date hereof terms of the First Priority Secured Obligations may be modified, extended or amended from time to time, and prior the aggregate amount of the First Priority Secured Obligations may be increased, replaced or refinanced, all without notice to or consent by the Discharge Second Priority Secured Parties (other than as expressly provided in the Existing Credit Agreement) and without affecting the provisions hereof. The priorities provided in Section 1(a) shall not be altered or otherwise affected by any amendment, modification, supplement, extension, increase, replacement, renewal, restatement or refinancing of either the First Priority Lien Secured Obligations or the Second Priority Secured Obligations, in no event shall the Parity Debt Representatives or any Parity Lien Secured Parties have a Lien on or security interest in portion thereof, nor by any Collateral action that is not subject and subordinate to the first priority lien of the First Priority Lien Secured Parties. Notwithstanding (i) anything to the contrary contained in any Parity Lien Document and irrespective of the time, order or method of attachment or perfection of the security interests created by the Priority Lien Documents or the Parity Lien Documents, (ii) anything contained in any filing or agreement to which the Priority Lien Secured Parties or Parity Lien Secured Parties or any other party hereto may be a party and (iii) the rules for determining priority under the UCC or any other law governing the relative priorities of secured creditors, any security interest in any Collateral that is part of the Senior Trust Estate has and shall have priority over any security interest in such Collateral that is part of the Junior Trust Estate.
(c) Whether or not any Bankruptcy Case or Insolvency Proceeding has been commenced by or against any Obligor, until the Discharge of Second Priority Lien Obligations, (i) the Parity Lien Secured Parties will not (A) exercise or seek to exercise any rights or exercise any remedies with respect to any Collateral that is subject to the Senior Trust Estate, (B) institute any action or proceeding with respect to such rights or remedies with respect to any Collateral, including any action of foreclosure, (C) contest, protest or object to any foreclosure proceeding or action brought by the Priority Lien Secured Parties or any other exercise by the Priority Lien Secured Parties of any rights and remedies under any Priority Lien Documents relating to the Collateral that is subject to the Senior Trust Estate, (D) object to the forbearance by the Priority Lien Secured Parties to the bringing or pursuing of any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral that is subject to the Senior Trust Estate, (E) take or receive from the Obligors, directly or indirectly, in cash or other property or by set off or in any other manner, the Collateral or any part thereof or proceeds therefrom in satisfaction of the Parity Lien Obligations, (F) contest or seek to invalidate any Liens or security interests securing the Priority Debt Obligations, or the perfection thereof, or the validity or enforceability of this Agreement, (G) take or permit any action prejudicial to or inconsistent with the priority position of the Senior Trust Estate over the Junior Trust Estate, (H) object to any adequate protection or similar relief requested and obtained by the Priority Lien Secured Parties in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor or (I) object to any consent or approval by the Priority Lien Secured Parties to the use of cash or other Collateral, or any similar relief, in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor, and (ii) the Priority Lien Secured Parties shall have the exclusive right to enforce rights and exercise remedies with respect to any Collateral that is part of the Senior Trust Estate, regardless of whether such Collateral may also be part of the Junior Trust Estate. Notwithstanding the foregoing, the Parity Lien Secured Parties may enforce rights, exercise remedies and take actions (A) without any condition or restriction whatsoever, at any time after the Discharge of Priority Lien Obligations, (B) as necessary fail to perfect a Lien upon any Collateral by any method of perfection except through possession or control or (C) as necessary to prove, preserve or protect (but not enforce) the Liens securing the Parity Lien Obligations.
(d) In exercising rights and remedies with respect to the Collateral, the Priority Debt Representatives may enforce (or refrain from enforcing) the provisions of the Priority Lien Documents and exercise (or refrain from exercising) remedies thereunder or any such rights and remedies, all in such order and in such manner as they may determine in the exercise of their sole and exclusive discretion, including (i) the exercise or forebearance from exercise of all rights and remedies in respect of the Collateral and/or the Priority Lien Obligations, (ii) the enforcement or forbearance from enforcement of any Lien take in respect of the Collateral, (iii) the release, with or without consideration, of the Collateral from the Senior Trust Estate, and, in connection with any such release, the concurrent release, with or without consideration (as determined by the Priority Lien Secured Parties), of such collateral from the Junior Trust Estate, (iv) the exercise or forebearance from exercise of rights and powers of a holder of shares of stock included in the Senior Trust Estate to the extent provided in the Security Documents, (v) the acceptance of the Collateral in full or partial satisfaction of the Priority Lien Obligations and (vi) the exercise or forebearance from exercise of all rights and remedies of a secured lender under the UCC or any similar law of any applicable jurisdiction or in equity.
(e) Without in any way limiting the generality of the foregoing paragraphs, the Priority Lien Secured Parties may, at any time and from time to time, without the consent of or notice to the Parity Lien Secured Parties, without incurring responsibility to the Parity Lien Secured Parties and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder of the Parity Lien Secured Parties, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the Priority Lien Obligations, or otherwise amend or supplement in any manner the Priority Lien Obligations, or any instrument evidencing the Priority Lien Obligations or any agreement under which the Priority Lien Obligations are outstanding, (ii) release any Person or entity liable in any manner for the collection of the Priority Lien Obligations, (iii) release the Lien on any Collateral securing the Priority Lien Obligations and (iv) exercise or refrain from exercising any rights against any Obligor.
(f) The doctrine of marshalling of assets or collateral or any other legal or equitable principle or doctrine which could otherwise, in any way, constrain, limit or affect the order or manner of the enforcement against any Person obligated for the Priority Lien Obligations or the liquidation of the Senior Trust Estate shall not be applicable to the Senior Trust Estate or to the rights of the Priority Lien Secured Parties under this Agreement.
Appears in 1 contract
Samples: Credit Agreement (Knowles Electronics Holdings Inc)
Priority of Liens. (a) Notwithstanding anything else contained herein or in any Security Document, it is the intent of the parties that: (i) this Agreement and the Security Documents create two separate and distinct Trust Estates and Liens: the Senior Trust Estate and Lien securing the payment and performance of the Priority Lien Obligations and the Junior Trust Estate and Lien securing the payment and performance of the Parity Second Lien Obligations and (ii) the Liens securing the Parity Second Lien Obligations are subject and subordinate (in accordance with the terms hereof and of the other Security Documents) to the Liens securing the Priority Lien Obligations.
(b) The parties hereto agree that, after the date hereof and prior to the Discharge of Priority Lien Obligations, in no event shall the Parity Second Lien Debt Representatives or any Parity Second Lien Secured Parties have a Lien on or security interest in any Collateral that is not subject and subordinate to the first priority lien of the Priority Lien Secured Parties. Notwithstanding (i) anything to the contrary contained in any Parity Second Lien Document and irrespective of the time, order or method of attachment or perfection of the security interests created by the Priority Lien Documents or the Parity Second Lien Documents, (ii) anything contained in any filing or agreement to which the Priority Lien Secured Parties or Parity Second Lien Secured Parties or any other party hereto may be a party and (iii) the rules for determining priority under the UCC or any other law governing the relative priorities of secured creditors, any security interest in any Collateral that is part of the Senior Trust Estate has and shall have priority over any security interest in such Collateral that is part of the Junior Trust Estate. For the avoidance of doubt, in the event that any holder of Second Lien Obligations becomes a judgment lien creditor as a result of its enforcement of its rights as an unsecured creditor, such judgment lien shall be subject to the terms of this Agreement for all purposes hereof (including the priority of Liens).
(c) Whether or not any Bankruptcy Case or Insolvency Proceeding has been commenced by or against any Obligor, until the Discharge of Priority Lien Obligations, (i) the Parity Second Lien Secured Parties will not (A) exercise or seek to exercise any rights or exercise any remedies with respect to any Collateral that is subject to the Senior Trust Estate, (B) institute any action or proceeding with respect to such rights or remedies with respect to any Collateral, including any action of foreclosure, or take any other action, that would hinder, delay limit or prohibit the lawful exercise or enforcement of any right or remedy otherwise available to the Priority Lien Secured Parties, (C) contest, protest or object to any foreclosure proceeding or action brought by the Priority Lien Secured Parties or any other exercise by the Priority Lien Secured Parties of any rights and remedies under any Priority Lien Documents relating to the Collateral that is subject to the Senior Trust Estate, (D) object to the forbearance by the Priority Lien Secured Parties to the bringing or pursuing of any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral that is subject to the Senior Trust Estate, (E) take or receive from the Obligors, directly or indirectly, in cash or other property or by set off setoff or in any other manner, the Collateral or any part thereof or proceeds therefrom in satisfaction of the Parity Second Lien Obligations, (F) contest or seek to invalidate any Liens or security interests securing the Priority Debt Lien Obligations, or the perfection thereof, or the validity or enforceability of this AgreementAgreement or the amount, nature or extent of the Priority Lien Obligations, (G) take or permit any action prejudicial to or inconsistent with the priority position of the Senior Trust Estate over the Junior Trust Estate, (H) object to any adequate protection or similar relief requested and obtained by the Priority Lien Secured Parties in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor or (I) object to any consent or approval by the Priority Lien Secured Parties to the use of cash or other Collateral, or any similar relief, in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor, and (ii) the Priority Lien Secured Parties shall have the exclusive right to enforce rights and exercise remedies with respect to any Collateral that is part of the Senior Trust Estate, regardless of whether such Collateral may also be part of the Junior Trust Estate. Notwithstanding the foregoing, the Parity Second Lien Secured Parties may may, subject to Section 8.2, enforce rights, exercise remedies and take actions (Ax) without any condition or restriction whatsoever, at any time after the Discharge of Priority Lien Obligations, (By) as necessary to perfect a Second Lien upon any Collateral by any method of perfection except through possession or control or (Cz) as necessary to prove, preserve or protect (but not enforce) the Liens securing the Parity Second Lien Obligations. Nothing in this Agreement will be deemed to prohibit or restrict the ability of the Secured Parties to accept proceeds pursuant to any Hedging Agreement in the ordinary course of business and in accordance with the terms of each Secured Debt Document (and, for the avoidance of doubt, not in connection with the exercise of any rights and remedies) prior to an event of default under the applicable Secured Debt Document.
(d) In exercising rights and remedies with respect to the Collateral, the Priority Debt Representatives may shall have, by or with the consent of an Act of Instructing Debtholders, the exclusive right to direct the Collateral Trustee to enforce (or refrain from enforcing) the provisions of the Priority Lien Documents and to exercise (or refrain from exercising) remedies thereunder or any such rights and remedies, all in such order and in such manner as they may determine in the exercise of their sole and exclusive discretion, including (i) the exercise or forebearance forbearance from exercise of all rights and remedies in respect of the Collateral and/or the Priority Lien Obligations, (ii) the enforcement or forbearance from enforcement of any Lien in respect of the Collateral, (iii) the releaserelease (or subordination), with or without consideration, of the Collateral (or Collateral Trustee’s Lien) from the Senior Trust Estate, and, in connection with any such releaserelease (or subordination), the concurrent releaserelease (or subordination) subject to Article IV, with or without consideration (as determined by the Priority Lien Secured Parties), of such collateral (or Collateral Trustee’s Lien) from the Junior Trust Estate, (iv) the exercise or forebearance forbearance from exercise of rights and powers of a holder of shares of stock included in the Senior Trust Estate to the extent provided in the Security Documents, (v) the acceptance of the Collateral in full or partial satisfaction of the Priority Lien Obligations and (vi) the exercise or forebearance forbearance from exercise of all rights and remedies of a secured lender under the UCC or any similar law of any applicable jurisdiction or in equityequity and no Second Lien Secured Party shall contest, protest or object to any of the foregoing actions.
(e) Without in any way limiting the generality of the foregoing paragraphs, the Priority Lien Secured Parties of any Series of Priority Lien Debt may, at any time and from time to time, without the consent of or notice to the Parity Second Lien Secured Parties, without incurring responsibility to the Parity Second Lien Secured Parties and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder of the Parity Second Lien Secured Parties, do any one or more of the followingfollowing with respect to such Series of Priority Lien Debt: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the such Priority Lien Obligations, or otherwise amend amend, restate, supplement, replace or supplement refinance in any manner the such Priority Lien Obligations, or any instrument evidencing the such Priority Lien Obligations or any agreement under which the such Priority Lien Obligations are outstanding, (ii) release any Person or entity liable in any manner for the collection of the such Priority Lien Obligations, (iii) release or subordinate the Lien on any Collateral securing the such Priority Lien Obligations and (iv) exercise or refrain from exercising any rights against any Obligor.
(f) The doctrine of marshalling of assets or collateral or any other legal or equitable principle or doctrine which could otherwise, in any way, constrain, limit or affect the order or manner of the enforcement against any Person obligated for the Priority Lien Obligations or the liquidation of the Senior Trust Estate shall not be applicable to the Senior Trust Estate or to the rights of the Priority Lien Secured Parties under this Agreement. The Collateral Trustee on behalf of itself and each Second Lien Secured Party hereby waives any right to require marshalling of any assets securing the Priority Lien Obligations whether or not such assets are part of the Senior Trust Estate.
(g) At any time prior to the Discharge of Priority Lien Obligations and after (1) the commencement of any Bankruptcy Case or Insolvency Proceeding in respect of any Borrower or any other Obligor or (2) the Collateral Trustee and each Second Lien Debt Representative have received written notice from any Priority Debt Representative at the direction of an Act of Instructing Debtholders stating that (A) any Series of Priority Lien Debt has become due and payable in full (whether at maturity, upon acceleration or otherwise) or (B) the holders of Priority Liens securing one or more Series of Priority Lien Debt have become entitled under any Priority Lien Documents to and desire to enforce any or all of the Priority Liens by reason of an event of default under such Priority Lien Documents, no payment of money (or the equivalent of money) shall be made from the proceeds of Collateral by any Borrower or any other Obligor to the Collateral Trustee (other than payments to the Collateral Trustee for the benefit of the Priority Lien Secured Parties) or any Second Lien Secured Party (including, without limitation, payments and prepayments made for application to Second Lien Obligations and all other payments and deposits made pursuant to any provision of any Second Lien Document).
(h) All proceeds of Collateral received by the Collateral Trustee, any Second Lien Debt Representative or any holder of Second Lien Obligations in violation of Section 2.3(g) will be held by the Collateral Trustee, the applicable Second Lien Debt Representative or the applicable holder of Second Lien Obligations for the account of the holders of Priority Liens and remitted to the Collateral Trustee upon demand by any Priority Debt Representative for application in accordance with Section 3.4. The Second Liens will remain attached to and enforceable against all proceeds so held or remitted, subject to the terms of this Agreement. All proceeds of Collateral received by the Collateral Trustee, holders of Second Lien Obligations and Second Lien Debt Representatives not in violation of Section 2.3(g) will be received by the Collateral Trustee, holders of Second Lien Obligations and the Second Lien Debt Representatives free from the Priority Liens.
Appears in 1 contract
Priority of Liens. (a) Notwithstanding anything else contained herein or Agent has a valid, enforceable, perfected, first ----------------- priority Lien and security interest for the benefit of Lenders in any Security Document, it is the intent of the parties that: (i) this Agreement each Mortgage Loan heretofore identified on a Collateral Pledge Certificate delivered to Agent and the Security Documents create two separate and distinct Trust Estates and Liens: the Senior Trust Estate and Lien securing the payment and performance of the Priority Lien Obligations and the Junior Trust Estate and Lien securing the payment and performance of the Parity Lien Obligations and (ii) the Liens securing the Parity Lien Obligations are subject and subordinate not subsequently released by Agent pursuant to the Liens securing the Priority Lien Obligations.
(b) The parties hereto agree that, after the date hereof and prior to the Discharge of Priority Lien Obligations, in no event shall the Parity Debt Representatives or any Parity Lien Secured Parties have a Lien on or security interest in any Collateral that is not subject and subordinate to the first priority lien of the Priority Lien Secured Parties. Notwithstanding (i) anything to the contrary contained in any Parity Lien Document and irrespective of the time, order or method of attachment or perfection of the security interests created by the Priority Lien Documents Original Loan Agreement or the Parity Lien Documents, (ii) anything contained in any filing or agreement to which the Priority Lien Secured Parties or Parity Lien Secured Parties or any other party hereto may be a party and (iii) the rules for determining priority under the UCC or any other law governing the relative priorities of secured creditors, any security interest in any Collateral that is part of the Senior Trust Estate has and shall have priority over any security interest in such Collateral that is part of the Junior Trust Estate.
(c) Whether or not any Bankruptcy Case or Insolvency Proceeding has been commenced by or against any Obligor, until the Discharge of Priority Lien Obligations, (i) the Parity Lien Secured Parties will not (A) exercise or seek to exercise any rights or exercise any remedies with respect to any Collateral that is subject to the Senior Trust Estate, (B) institute any action or proceeding with respect to such rights or remedies with respect to any Collateral, including any action of foreclosure, (C) contest, protest or object to any foreclosure proceeding or action brought by the Priority Lien Secured Parties or any other exercise by the Priority Lien Secured Parties of any rights and remedies under any Priority Lien Documents relating to the Collateral that is subject to the Senior Trust Estate, (D) object to the forbearance by the Priority Lien Secured Parties to the bringing or pursuing of any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral that is subject to the Senior Trust Estate, (E) take or receive from the Obligors, directly or indirectly, in cash or other property or by set off or in any other manner, the Collateral or any part thereof or proceeds therefrom in satisfaction of the Parity Lien Obligations, (F) contest or seek to invalidate any Liens or security interests securing the Priority Debt ObligationsExisting Loan Agreement, or the perfection thereof, or the validity or enforceability of this Agreement, (G) take or permit any action prejudicial to or inconsistent with the priority position of the Senior Trust Estate over the Junior Trust Estate, (H) object to any adequate protection or similar relief requested and obtained by the Priority Lien Secured Parties in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor or (I) object to any consent or approval by the Priority Lien Secured Parties to the use of cash or other Collateral, or any similar relief, in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor, and (ii) the Priority Lien Secured Parties shall have the exclusive right to enforce rights and exercise remedies with respect to any Collateral that is part of the Senior Trust Estate, regardless of whether such Collateral may also be part of the Junior Trust Estate. Notwithstanding the foregoing, the Parity Lien Secured Parties may enforce rights, exercise remedies and take actions (A) without any condition or restriction whatsoever, at any time after the Discharge of Priority Lien Obligations, (B) as necessary to perfect a Lien upon any Collateral by any method of perfection except through possession or control or (C) as necessary to prove, preserve or protect (but not enforce) the Liens securing the Parity Lien Obligations.
(d) In exercising rights and remedies with respect to the Collateral, the Priority Debt Representatives may enforce (or refrain from enforcing) the provisions of the Priority Lien Documents and exercise (or refrain from exercising) remedies thereunder or any such rights and remedies, all in such order and in such manner as they may determine in the exercise of their sole and exclusive discretion, including (i) the exercise or forebearance from exercise of all rights and remedies in respect of the Collateral and/or the Priority Lien Obligationsagreement, (ii) the enforcement Agency Servicing Rights of Borrower and the Servicing Rights of Borrower other than Agency Servicing Rights heretofore granted by Borrower to Agent pursuant to the Security Agreement and not subsequently released by Agent pursuant to the Original Loan Agreement, or forbearance from enforcement of any Lien in respect of the CollateralExisting Loan Agreement, or this agreement, and (iii) each Take-Out Commitment of Borrower. Upon delivery to Agent of a Collateral Pledge Certificate identifying a New Wet Mortgage Loan and the release, with or without consideration, funding by Lenders of the Collateral from Warehouse Advances (or by Agent of the Senior Trust Estate, and, Swing Advance) requested in connection with any therewith, Agent will have valid, enforceable, perfected, first priority Liens and security interests for the benefit of Lenders in such releaseNew Wet Mortgage Loan and in all Mortgage Documents related thereto. Upon delivery to Agent of each Collateral Pledge Certificate and the Mortgage Notes which evidence the Mortgage Loans (other than New Wet Mortgage Loans) identified therein, Agent will have valid, enforceable, perfected, first priority Liens and security interests for the concurrent release, with or without consideration (as determined by benefit of Lenders in such Mortgage Loans and in all Mortgage Documents related thereto. Upon the Priority Lien Secured Parties), of such collateral from the Junior Trust Estate, (iv) the exercise or forebearance from exercise of rights and powers of a holder of shares of stock included in the Senior Trust Estate to the extent provided in the Security Documents, (v) the acceptance of the Collateral in full or partial satisfaction of the Priority Lien Obligations and (vi) the exercise or forebearance from exercise of all rights and remedies of a secured lender under the UCC or any similar law creation of any applicable jurisdiction Agency Servicing Rights relevant to FNMA on or after the Agreement Date, Agent will have a valid, enforceable, perfected first priority Lien and security interest in equity.
(e) Without in any way limiting the generality of the foregoing paragraphssuch Agency Servicing Rights, the Priority Lien Secured Parties may, at any time and from time to time, without the consent of or notice to the Parity Lien Secured Parties, without incurring responsibility to the Parity Lien Secured Parties and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder of the Parity Lien Secured Parties, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the Priority Lien Obligations, or otherwise amend or supplement in any manner the Priority Lien Obligations, or any instrument evidencing the Priority Lien Obligations or any agreement under which the Priority Lien Obligations are outstanding, (ii) release any Person or entity liable in any manner for the collection of the Priority Lien Obligations, (iii) release the Lien on any Collateral securing the Priority Lien Obligations and (iv) exercise or refrain from exercising any rights against any Obligor.
(f) The doctrine of marshalling of assets or collateral or any other legal or equitable principle or doctrine which could otherwise, in any way, constrain, limit or affect the order or manner of the enforcement against any Person obligated for the Priority Lien Obligations or the liquidation of the Senior Trust Estate shall not be applicable to the Senior Trust Estate or subject only to the rights of FNMA under the Priority applicable Agency Servicing Agreements (including the FNMA Guide). Upon the creation of any Agency Servicing Rights relevant to FHLMC on or after the Agreement Date, Agent will have a valid, enforceable, perfected, first priority Lien Secured Parties and security interest in such Agency Servicing Rights, subject only to the rights of FHLMC under this Agreementthe applicable Agency Servicing Agreements (including the FHLMC Guide). Upon the creation of any Servicing Rights other than Servicing Rights relevant to FNMA or FHLMC on or after the Agreement Date, Agent will have a valid, enforceable, perfected, first priority Lien and security interest in all such Servicing Rights other than Servicing Rights relevant to FNMA or FHLMC, subject only to the rights of Persons counterparty under the applicable Servicing Agreements (including, if applicable, the GNMA Guide).
Appears in 1 contract
Samples: Loan Agreement (NVR Inc)
Priority of Liens. (a) Notwithstanding anything else contained herein or in any Security DocumentEach Grantor hereby covenants, it is the intent represents and warrants that, upon entry of the parties that: Interim Order, the Obligations of the Borrower and the Guarantors hereunder and under the other Loan Documents, (i) this Agreement and the Security Documents create two separate and distinct Trust Estates and Liens: the Senior Trust Estate and Lien securing the payment and performance pursuant to Section 364(c)(1) of the Bankruptcy Code, shall at all times constitute allowed Super-Priority Lien Obligations and the Junior Trust Estate and Lien securing the payment and performance of the Parity Lien Obligations and Claims, (ii) pursuant to Section 364(c)(2) of the Bankruptcy Code, shall at all times be secured by a perfected first priority Lien on all Collateral, including without limitation, all cash maintained in the Cash Collateral Account and the Concentration Account and any direct investments of the funds contained therein, that is otherwise not encumbered by a valid and perfected Lien as of the Petition Date, (iii) pursuant to Section 364(c)(3) of the Bankruptcy Code, shall be secured by a perfected second priority Lien upon all Collateral (other than the Prepetition Collateral of the Borrower and the Guarantors, as to which the Lien in favor of the General Administrative Agent will be as described in clause (iv) of this sentence) that is subject to valid and perfected Liens in existence on the Petition Date or valid Liens perfected (but not granted) thereafter to the extent such post-Petition Date perfection in respect of a pre-Petition Date claim is expressly permitted under the Bankruptcy Code, junior to such Liens, PROVIDED that the Liens securing granted in favor of the Parity General Administrative Agent (for the benefit of the General Administrative Agent and the Lenders) shall be senior to any Lien Obligations are which is expressly stated herein to be junior to the Liens in favor of the General Administrative Agent, and (iv) pursuant to Section 364(d)(1) of the Bankruptcy Code, shall be secured by a perfected first priority, senior priming Lien on all of the Prepetition Collateral of the Borrower and the Guarantors that is not subject to a Lien permitted under the Prepetition Credit Agreement and any property of the Borrower and the Guarantors on which a Lien is granted after the Petition Date to provide adequate protection in respect of the Prepetition Obligations, subject and subordinate in each case with respect to subclauses (i) through (iv) above, only to a carve-out (the "CARVE-OUT") for (x) following the occurrence and during the continuance of an Event of Default and notice from the General Administrative Agent of the triggering of such carve-out to the Liens securing Debtors, their counsel and counsel to any statutory committee appointed in the Priority Lien ObligationsCases, the payment (as the same may be due and payable) of professional fees and disbursements allowed by order of the Bankruptcy Court and incurred by the Borrower or any Guarantor and any statutory committee appointed in the Cases in an aggregate amount not to exceed $7,500,000 (in addition to compensation previously incurred to the extent subsequently allowed) and (y) the payment of unpaid fees pursuant to 28 U.S.C. ss. 1930 and any fees payable to the Clerk of the Bankruptcy Court, PROVIDED FURTHER that following the Termination Date, amounts in the Cash Collateral Account shall not be subject to the Carve-Out. Without prejudice to any Lender's right to object to the interim or final allowance of any compensation or reimbursement of expenses, the Lenders agree that so long as no Default or Event of Default shall have occurred and be continuing, the Borrower shall be permitted to pay compensation and reimbursement of expenses allowed and payable under Sections 330 and 331 of the Bankruptcy Code, as the same may be payable, and the amounts so paid shall not reduce the Carve-Out.
(b) The parties hereto agree Each Grantor acknowledges that, after the date hereof and prior pursuant to the Discharge of Priority Lien ObligationsOrders, the Liens granted in no event shall the Parity Debt Representatives or any Parity Lien Secured Parties have a Lien on or security interest in any Collateral that is not subject and subordinate to the first priority lien favor of the Priority Lien Secured Parties. Notwithstanding General Administrative Agent (i) anything to for the contrary contained in any Parity Lien Document and irrespective benefit of the time, order or method of attachment or perfection of General Administrative Agent and the security interests created by the Priority Lien Documents or the Parity Lien Documents, (iiLenders) anything contained in any filing or agreement to which the Priority Lien Secured Parties or Parity Lien Secured Parties or any other party hereto may be a party and (iii) the rules for determining priority under the UCC or any other law governing the relative priorities of secured creditors, any security interest in any Collateral that is part of the Senior Trust Estate has and shall have priority over any security interest in such Collateral that is part of the Junior Trust Estate.
(c) Whether or not any Bankruptcy Case or Insolvency Proceeding has been commenced by or against any Obligor, until the Discharge of Priority Lien Obligations, (i) the Parity Lien Secured Parties will not (A) exercise or seek to exercise any rights or exercise any remedies with respect to any Collateral that is subject to the Senior Trust Estate, (B) institute any action or proceeding with respect to such rights or remedies with respect to any Collateral, including any action of foreclosure, (C) contest, protest or object to any foreclosure proceeding or action brought by the Priority Lien Secured Parties or any other exercise by the Priority Lien Secured Parties of any rights and remedies under any Priority Lien Documents relating to the Collateral that is subject to the Senior Trust Estate, (D) object to the forbearance by the Priority Lien Secured Parties to the bringing or pursuing of any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral that is subject to the Senior Trust Estate, (E) take or receive from the Obligors, directly or indirectly, in cash or other property or by set off or in any other manner, the Collateral or any part thereof or proceeds therefrom in satisfaction of the Parity Lien Obligations, (F) contest or seek to invalidate any Liens or security interests securing the Priority Debt Obligations, or the perfection thereof, or the validity or enforceability of this Agreement, (G) take or permit any action prejudicial to or inconsistent with the priority position of the Senior Trust Estate over the Junior Trust Estate, (H) object to any adequate protection or similar relief requested and obtained by the Priority Lien Secured Parties in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor or (I) object to any consent or approval by the Priority Lien Secured Parties to the use of cash or other Collateral, or any similar relief, in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor, and (ii) the Priority Lien Secured Parties shall have the exclusive right to enforce rights and exercise remedies with respect to any Collateral that is part of the Senior Trust Estate, regardless of whether such Collateral may also be part of the Junior Trust Estate. Notwithstanding the foregoing, the Parity Lien Secured Parties may enforce rights, exercise remedies and take actions (A) without any condition or restriction whatsoever, at any time after the Discharge of Priority Lien Obligations, (B) as necessary to perfect a Lien upon any Collateral by any method of perfection except through possession or control or (C) as necessary to prove, preserve or protect (but not enforce) the Liens securing the Parity Lien Obligations.
(d) In exercising rights and remedies with respect to the Collateral, the Priority Debt Representatives may enforce (or refrain from enforcing) the provisions of the Priority Lien Documents and exercise (or refrain from exercising) remedies thereunder or any such rights and remedies, all in such order and in such manner as they may determine in the exercise of their sole and exclusive discretion, including (i) the exercise or forebearance from exercise of all rights and remedies in respect of the Collateral and/or shall be perfected without the Priority Lien Obligations, (ii) the enforcement or forbearance from enforcement recordation of any Lien in respect Uniform Commercial Code financing statements, notices of the CollateralLien, (iii) the release, with fee or without consideration, leasehold mortgages or other instruments of the Collateral from the Senior Trust Estate, and, in connection with any such release, the concurrent release, with mortgage or without consideration (as determined assignment. Each Grantor further agrees that if requested by the Priority Lien Secured Parties)General Administrative Agent, of such collateral from the Junior Trust Estate, (iv) the exercise or forebearance from exercise of rights it shall execute and powers of a holder of shares of stock included in the Senior Trust Estate deliver to the extent provided General Administrative Agent all such financing statements, notices of Lien, fee or leasehold mortgages or other instruments of mortgage and assignment in the Security Documents, (v) the acceptance of the Collateral in full or partial satisfaction of the Priority Lien Obligations form and (vi) the exercise or forebearance from exercise of all rights and remedies of a secured lender under the UCC or any similar law of any applicable jurisdiction or in equity.
(e) Without in any way limiting the generality of the foregoing paragraphs, the Priority Lien Secured Parties may, at any time and from time to time, without the consent of or notice substance reasonably satisfactory to the Parity Lien Secured Parties, without incurring responsibility to the Parity Lien Secured Parties and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder of the Parity Lien Secured Parties, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the Priority Lien Obligations, or otherwise amend or supplement in any manner the Priority Lien Obligations, or any instrument evidencing the Priority Lien Obligations or any agreement under which the Priority Lien Obligations are outstanding, (ii) release any Person or entity liable in any manner for the collection of the Priority Lien Obligations, (iii) release the Lien on any Collateral securing the Priority Lien Obligations and (iv) exercise or refrain from exercising any rights against any ObligorGeneral Administrative Agent.
(f) The doctrine of marshalling of assets or collateral or any other legal or equitable principle or doctrine which could otherwise, in any way, constrain, limit or affect the order or manner of the enforcement against any Person obligated for the Priority Lien Obligations or the liquidation of the Senior Trust Estate shall not be applicable to the Senior Trust Estate or to the rights of the Priority Lien Secured Parties under this Agreement.
Appears in 1 contract
Priority of Liens. (a) Notwithstanding anything else contained herein or in any Security DocumentCollateral Document or in the Secured Debt Documents, it is the intent of the parties Parties that: :
(i) this Agreement and the Security Collateral Documents create two three separate and distinct Trust Estates and classes of Liens: (A) the Senior Trust Estate ABL Liens securing the payment and Lien performance of the ABL Obligations (B) the Priority Liens securing the payment and performance of the Priority Lien Indebtedness Obligations and (C) the Junior Trust Estate and Lien Second Liens securing the payment and performance of the Parity Second Lien Obligations and Obligations;
(ii) the ABL Liens securing shall rank first on the Parity Lien Obligations ABL Collateral and the Priority Liens and Second Liens on the ABL Collateral are subject and subordinate to the ABL Liens securing thereon;
(iii) the Priority Lien Obligations.
(b) The parties hereto agree that, after Liens shall rank second on the date hereof ABL Collateral and prior to the Discharge of Priority Lien Obligations, in no event shall Second Liens on the Parity Debt Representatives or any Parity Lien Secured Parties have a Lien on or security interest in any ABL Collateral that is not are subject and subordinate to the first priority lien of the Priority Lien Secured Parties. Notwithstanding (i) anything to the contrary contained in any Parity Lien Document and irrespective of the time, order or method of attachment or perfection of the security interests created by the Priority Lien Documents or the Parity Lien Documents, (ii) anything contained in any filing or agreement to which the Priority Lien Secured Parties or Parity Lien Secured Parties or any other party hereto may be a party and (iii) the rules for determining priority under the UCC or any other law governing the relative priorities of secured creditors, any security interest in any Collateral that is part of the Senior Trust Estate has and shall have priority over any security interest in such Collateral that is part of the Junior Trust Estate.Liens thereon;
(c) Whether or not any Bankruptcy Case or Insolvency Proceeding has been commenced by or against any Obligor, until the Discharge of Priority Lien Obligations, (i) the Parity Lien Secured Parties will not (A) exercise or seek to exercise any rights or exercise any remedies with respect to any Collateral that is subject to the Senior Trust Estate, (B) institute any action or proceeding with respect to such rights or remedies with respect to any Collateral, including any action of foreclosure, (C) contest, protest or object to any foreclosure proceeding or action brought by the Priority Lien Secured Parties or any other exercise by the Priority Lien Secured Parties of any rights and remedies under any Priority Lien Documents relating to the Collateral that is subject to the Senior Trust Estate, (D) object to the forbearance by the Priority Lien Secured Parties to the bringing or pursuing of any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral that is subject to the Senior Trust Estate, (E) take or receive from the Obligors, directly or indirectly, in cash or other property or by set off or in any other manner, the Collateral or any part thereof or proceeds therefrom in satisfaction of the Parity Lien Obligations, (F) contest or seek to invalidate any Liens or security interests securing the Priority Debt Obligations, or the perfection thereof, or the validity or enforceability of this Agreement, (G) take or permit any action prejudicial to or inconsistent with the priority position of the Senior Trust Estate over the Junior Trust Estate, (H) object to any adequate protection or similar relief requested and obtained by the Priority Lien Secured Parties in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor or (I) object to any consent or approval by the Priority Lien Secured Parties to the use of cash or other Collateral, or any similar relief, in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor, and (ii) the Priority Lien Secured Parties shall have the exclusive right to enforce rights and exercise remedies with respect to any Collateral that is part of the Senior Trust Estate, regardless of whether such Collateral may also be part of the Junior Trust Estate. Notwithstanding the foregoing, the Parity Lien Secured Parties may enforce rights, exercise remedies and take actions (A) without any condition or restriction whatsoever, at any time after the Discharge of Priority Lien Obligations, (B) as necessary to perfect a Lien upon any Collateral by any method of perfection except through possession or control or (C) as necessary to prove, preserve or protect (but not enforce) the Liens securing the Parity Lien Obligations.
(d) In exercising rights and remedies with respect to the Collateral, the Priority Debt Representatives may enforce (or refrain from enforcing) the provisions of the Priority Lien Documents and exercise (or refrain from exercising) remedies thereunder or any such rights and remedies, all in such order and in such manner as they may determine in the exercise of their sole and exclusive discretion, including (i) the exercise or forebearance from exercise of all rights and remedies in respect of the Collateral and/or the Priority Lien Obligations, (ii) the enforcement or forbearance from enforcement of any Lien in respect of the Collateral, (iii) the release, with or without consideration, of the Collateral from the Senior Trust Estate, and, in connection with any such release, the concurrent release, with or without consideration (as determined by the Priority Lien Secured Parties), of such collateral from the Junior Trust Estate, (iv) the exercise or forebearance from exercise of rights Second Liens shall rank third on the ABL Collateral and powers of a holder of shares of stock included in the Senior Trust Estate are subject and subordinate to the extent provided in ABL Liens and the Security Documents, Priority Liens thereon;
(v) the acceptance of Priority Liens shall rank first on the Notes Collateral in full or partial satisfaction of and the Second Liens and ABL Liens on the Notes Collateral are subject and subordinate to the Priority Lien Obligations and Liens thereon;
(vi) the exercise or forebearance from exercise of all rights Second Liens shall rank second on the Notes Collateral and remedies of a secured lender under the UCC or any similar law of any applicable jurisdiction or in equity.ABL Liens on the Notes Collateral are subject and subordinate to the Second Liens thereon; and
(evii) Without in any way limiting the generality of ABL Liens shall rank third on the foregoing paragraphs, Notes Collateral and are subject and subordinate to the Priority Lien Secured Parties may, at any time Liens and from time to time, without the consent of or notice to the Parity Lien Secured Parties, without incurring responsibility to the Parity Lien Secured Parties and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder of the Parity Lien Secured Parties, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the Priority Lien Obligations, or otherwise amend or supplement in any manner the Priority Lien Obligations, or any instrument evidencing the Priority Lien Obligations or any agreement under which the Priority Lien Obligations are outstanding, (ii) release any Person or entity liable in any manner for the collection of the Priority Lien Obligations, (iii) release the Lien on any Collateral securing the Priority Lien Obligations and (iv) exercise or refrain from exercising any rights against any ObligorSecond Liens thereon.
(f) The doctrine of marshalling of assets or collateral or any other legal or equitable principle or doctrine which could otherwise, in any way, constrain, limit or affect the order or manner of the enforcement against any Person obligated for the Priority Lien Obligations or the liquidation of the Senior Trust Estate shall not be applicable to the Senior Trust Estate or to the rights of the Priority Lien Secured Parties under this Agreement.
Appears in 1 contract
Samples: Collateral Trust and Agency Agreement (Postmedia Network Canada Corp.)
Priority of Liens. (1) Subject to the terms of this Agreement, each of the Secured Parties expressly and irrevocably agrees that the Secured Parties Liens in the ABL Priority Collateral shall, as between the Secured Parties, have the following priorities:
(a) Notwithstanding anything else contained herein or in any Security DocumentUntil the ABL Obligations Payment Date has occurred, it is (A) the intent of ABL Liens shall be first priority Liens and shall have full and absolute priority over the parties that: (i) this Agreement Term Credit Liens and the Security Documents create two separate Secured Notes Liens, each of which shall in all respects and distinct Trust Estates for all purposes be subordinated and postponed and rank junior to the ABL Liens: , (B) the Senior Trust Estate Term Credit Liens shall be second priority Liens and Lien securing shall have full and absolute priority over the payment Secured Notes Liens, which shall in all respects and performance of for all purposes be subordinated and postponed and rank junior to the Priority Lien Obligations and the Junior Trust Estate and Lien securing the payment and performance of the Parity Lien Obligations Term Credit Liens, and (iiC) the Secured Notes Liens securing the Parity Lien Obligations are subject and subordinate to the Liens securing the Priority Lien Obligations.shall be third priority Liens;
(b) The parties hereto agree thatProvided the ABL Obligations Payment Date has occurred and until the Term Credit Obligations Payment Date has occurred, after (A) the date hereof and prior to the Discharge of Priority Lien Obligations, in no event Term Credit Liens shall the Parity Debt Representatives or any Parity Lien Secured Parties have a Lien on or security interest in any Collateral that is not subject and subordinate to the be first priority lien of the Priority Lien Secured Parties. Notwithstanding (i) anything to the contrary contained in any Parity Lien Document and irrespective of the time, order or method of attachment or perfection of the security interests created by the Priority Lien Documents or the Parity Lien Documents, (ii) anything contained in any filing or agreement to which the Priority Lien Secured Parties or Parity Lien Secured Parties or any other party hereto may be a party and (iii) the rules for determining priority under the UCC or any other law governing the relative priorities of secured creditors, any security interest in any Collateral that is part of the Senior Trust Estate has Liens and shall have full and absolute priority over any security interest the Secured Notes Liens which shall in such Collateral that is part of all respects and for all purposes be subordinated and postponed and rank junior to the Junior Trust Estate.Term Credit Liens, and (B) the Secured Notes Liens shall be second priority Liens; and
(c) Whether or not any Bankruptcy Case or Insolvency Proceeding Provided each of the ABL Obligations Payment Date and the Term Credit Obligations Payment Date has been commenced by or against any Obligoroccurred, the Secured Notes Liens shall be first priority Liens and shall have full and absolute priority over the ABL Priority Collateral until the Discharge Secured Notes Obligations Payment Date has occurred.
(2) Subject to the terms of this Agreement, each of the Secured Parties expressly and irrevocably agrees that the Secured Parties Liens in the Term Priority Lien ObligationsCollateral shall, as between the Secured Parties, have the following priorities:
(a) Until the Term Credit Obligations Payment Date has occurred, (A) the Term Credit Liens shall be first priority Liens and shall have full and absolute priority over the ABL Liens and the Secured Notes Liens, each of which shall in all respects and for all purposes be subordinated and postponed and rank junior to the Term Credit Liens, (B) the ABL Liens shall be second priority Liens and shall have full and absolute priority over the Secured Notes Liens up to, the ABL Term Priority Collateral Capped Amount, and the Secured Notes Liens shall be subordinated and postponed and rank junior to the ABL Liens to such extent, and (C) the Secured Notes Liens shall be third priority Liens and shall have full and absolute priority over the ABL Liens in excess of the ABL Term Priority Collateral Capped Amount, and the ABL Liens shall be subordinated and postponed and rank junior to the Secured Notes Liens to such extent until the Secured Notes Obligations Payment Date has occurred. Thereafter the ABL Liens in excess of the ABL Term Priority Collateral Capped Amount shall be first priority Liens;
(b) Provided the Term Credit Obligations Payment Date has occurred and until the ABL Obligations Payment Date has occurred, (A) the ABL Liens shall be first priority Liens and shall have full and absolute priority over the Secured Notes Liens up to the ABL Term Priority Collateral Capped Amount, and the Secured Notes Liens shall be subordinated and postponed and rank junior to the ABL Liens to such extent, (B) the Secured Notes Liens shall be second priority Liens and shall have full and absolute priority over the ABL Liens in excess of the ABL Term Priority Collateral Capped Amount, and the ABL Liens shall be subordinated and postponed and rank junior to the Secured Notes Liens to such extent until the Secured Notes Obligations Payment Date has occurred. Thereafter the ABL Liens in excess of the ABL Term Priority Collateral Capped Amount shall be first priority Liens; and
(c) Provided each of the Term Credit Obligations Payment Date and the earlier to occur of (i) the Parity Lien Secured Parties will not (A) exercise or seek to exercise any rights or exercise any remedies with respect to any Collateral that is subject to the Senior Trust Estate, (B) institute any action or proceeding with respect to such rights or remedies with respect to any Collateral, including any action of foreclosure, (C) contest, protest or object to any foreclosure proceeding or action brought by the Priority Lien Secured Parties or any other exercise by the Priority Lien Secured Parties of any rights and remedies under any Priority Lien Documents relating to the Collateral that is subject to the Senior Trust Estate, (D) object to the forbearance by the Priority Lien Secured Parties to the bringing or pursuing of any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral that is subject to the Senior Trust Estate, (E) take or receive from the Obligors, directly or indirectly, in cash or other property or by set off or in any other manner, the Collateral or any part thereof or proceeds therefrom in satisfaction of the Parity Lien Obligations, (F) contest or seek to invalidate any Liens or security interests securing the Priority Debt Obligations, or the perfection thereof, or the validity or enforceability of this Agreement, (G) take or permit any action prejudicial to or inconsistent with the priority position of the Senior Trust Estate over the Junior Trust Estate, (H) object to any adequate protection or similar relief requested and obtained by the Priority Lien Secured Parties in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor or (I) object to any consent or approval by the Priority Lien Secured Parties to the use of cash or other Collateral, or any similar relief, in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor, and (ii) the Priority Lien Secured Parties shall have the exclusive right to enforce rights and exercise remedies with respect to any Collateral that is part of the Senior Trust Estate, regardless of whether such Collateral may also be part of the Junior Trust Estate. Notwithstanding the foregoing, the Parity Lien Secured Parties may enforce rights, exercise remedies and take actions (A) without any condition or restriction whatsoever, at any time after the Discharge of Priority Lien Obligations, (B) as necessary to perfect a Lien upon any Collateral by any method of perfection except through possession or control or (C) as necessary to prove, preserve or protect (but not enforce) the Liens securing the Parity Lien Obligations.
(d) In exercising rights and remedies with respect to the Collateral, the Priority Debt Representatives may enforce (or refrain from enforcing) the provisions of the Priority Lien Documents and exercise (or refrain from exercising) remedies thereunder or any such rights and remedies, all in such order and in such manner as they may determine in the exercise of their sole and exclusive discretion, including (i) the exercise or forebearance from exercise of all rights and remedies in respect of the Collateral and/or the Priority Lien Obligations, (ii) the enforcement or forbearance from enforcement of any Lien in respect of the Collateral, (iii) the release, with or without consideration, of the Collateral from the Senior Trust Estate, and, in connection with any such release, the concurrent release, with or without consideration (as determined by the Priority Lien Secured Parties), of such collateral from the Junior Trust Estate, (iv) the exercise or forebearance from exercise of rights and powers of a holder of shares of stock included in the Senior Trust Estate to the extent provided in the Security Documents, (v) the acceptance of the Collateral in full or partial satisfaction of the Priority Lien ABL Obligations and (vi) the exercise or forebearance from exercise of all rights and remedies of a secured lender under the UCC or any similar law of any applicable jurisdiction or in equity.
(e) Without in any way limiting the generality of the foregoing paragraphs, the Priority Lien Secured Parties may, at any time and from time to time, without the consent of or notice to the Parity Lien Secured Parties, without incurring responsibility to the Parity Lien Secured Parties and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder of the Parity Lien Secured Parties, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the Priority Lien Obligations, or otherwise amend or supplement in any manner the Priority Lien Obligations, or any instrument evidencing the Priority Lien Obligations or any agreement under which the Priority Lien Obligations are outstanding, (ii) release any Person or entity liable in any manner for the collection of the Priority Lien Obligations, (iii) release the Lien on any Collateral securing the Priority Lien Obligations and (iv) exercise or refrain from exercising any rights against any Obligor.
(f) The doctrine of marshalling of assets or collateral or any other legal or equitable principle or doctrine which could otherwise, in any way, constrain, limit or affect the order or manner of the enforcement against any Person obligated for the Priority Lien Obligations or the liquidation of the Senior Trust Estate shall not be applicable to the Senior Trust Estate or to the rights of the Priority Lien Secured Parties under this Agreement.Payment Date has occurred or
Appears in 1 contract
Samples: Inter Creditor Agreement
Priority of Liens. (a) Notwithstanding anything else contained herein or in any other Security Document, it is the intent of the parties hereto that: :
(i1) this Agreement and the Security Documents create two four separate and distinct Trust Estates and Liens: the Senior First Priority Trust Estate and Lien securing the payment and performance of the First Priority Lien Obligations and Obligations, the Junior Second Priority Trust Estate and Lien securing the payment and performance of the Parity Second Priority Lien Obligations Obligations, the Third Priority Lien Trust Estate and Lien securing the payment and performance of the Third Priority Lien, and the Other Junior Lien Trust Estate and Lien securing the payment and performance of the Other Junior Lien Obligations;
(ii2) (w) the Liens securing the Parity First Priority Lien Obligations are subject and subordinate to the Liens securing the Priming Lien Obligations, (x) the Liens securing the Second Priority Lien Obligations are subject and subordinate to the Liens securing the Priming Lien Obligations and the Liens securing the First Priority Lien Obligations, (y) the Liens securing the Third Priority Lien Obligations are subject and subordinate to the Liens securing the Priming Lien Obligations, the Liens securing the First Priority Lien Obligations and the Liens securing the Second Priority Lien Obligations and (z) the Liens securing the Other Junior Lien Obligations are subject and subordinate to the Liens securing the Priming Lien Obligations, the Liens securing the First Priority Lien Obligations, the Liens securing the Second Priority Lien Obligations and the Liens securing the Third Priority Lien Obligations; and
(3) subject to the provisions of this Agreement relating to the rights to proceeds of the sale of property subject to the Liens described herein and, if applicable, the Priming Liens, any sale of property pursuant to a Lien described hereunder or, if applicable, a Priming Lien, will extinguish all Liens junior to the Lien pursuant to which such sale was made, and any property so sold will be sold free and clear of all such junior Liens.
(b) The parties hereto agree that, after the date hereof and prior to the Discharge of Priority Lien Obligations, in no event shall will:
(1) with respect to Collateral that is subject to a Lien in favor of any Priming Lien Secured Parties, the Parity First Priority Debt Representatives or any Parity First Priority Secured Parties have a Lien on or security interest in such Collateral that is not subject and subordinate to the Priming Lien of any Priming Lien Secured Parties;
(2) the Second Priority Debt Representatives or any Second Priority Secured Parties have a Lien on or security interest in any Collateral that is not subject and subordinate to the first priority lien Priming Lien of the Priority Lien Secured Parties. Notwithstanding (i) anything to the contrary contained in any Parity Lien Document and irrespective of the time, order or method of attachment or perfection of the security interests created by the Priority Lien Documents or the Parity Lien Documents, (ii) anything contained in any filing or agreement to which the Priority Priming Lien Secured Parties and the First Priority Lien of the First Priority Secured Parties;
(3) the Third Priority Debt Representatives or Parity Lien any Third Priority Secured Parties have a Lien on or any other party hereto may be a party and (iii) the rules for determining priority under the UCC or any other law governing the relative priorities of secured creditors, any security interest in any Collateral that is part not subject and subordinate to the Priming Lien of any Priming Lien Secured Parties, the First Priority Lien of the Senior Trust Estate has First Priority Secured Parties and shall the Second Priority Lien of the Second Priority Secured Parties; or
(4) the Other Junior Debt Representatives or any Other Junior Secured Parties have priority over any a Lien on or security interest in such any Collateral that is part not subject and subordinate to the Priming Lien of any Priming Lien Secured Parties, the First Priority Lien of the Junior Trust EstateFirst Priority Secured Parties, the Second Priority Lien of the Second Priority Secured Parties and the Third Priority Lien of the Third Priority Secured Parties.
(c) Whether or not any Bankruptcy Case or Insolvency Proceeding has been commenced by or against any Obligor, until the Discharge of Priority Lien Obligations, :
(i1) the Parity Lien Junior Priority Secured Parties will not not:
(A) exercise or seek to exercise any rights or exercise any remedies with respect to any Collateral that is subject to the Senior Trust Estate, (B) institute any action or proceeding with respect to such rights or remedies with respect to any Collateral, including any action of foreclosure, (C) contest, protest or object to any foreclosure proceeding or action brought by the Priority Lien Secured Parties or any other exercise by the Priority Lien Secured Parties of any rights and remedies under any Priority Lien Documents relating to the Collateral that is subject to the Senior Trust Estate, (D) object to the forbearance by the Priority Lien Secured Parties to the bringing or pursuing of any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Collateral that is subject to the Senior Trust Estate, (E) take or receive from the Obligors, directly or indirectlyrequest judicial relief, in cash or other property or by set off an Insolvency Proceeding or in any other mannercourt, that would hinder, delay, limit or prohibit the lawful exercise or enforcement of any right or remedy otherwise available to the Senior Priority Secured Parties in respect of the Collateral or that would limit, invalidate, avoid or set aside any part thereof Senior Priority Lien or proceeds therefrom in satisfaction of the Parity Lien Obligations, (F) contest or seek subordinate any Senior Priority Liens to invalidate any Junior Priority Liens or security interests securing the grant Junior Priority Debt Obligations, or the perfection thereof, or the validity or enforceability of this Agreement, (G) take or permit any action prejudicial to or inconsistent with the priority position of the Senior Trust Estate over the Junior Trust Estate, (H) object Liens equal ranking to any adequate protection Senior Priority Liens;
(B) oppose or similar otherwise contest any motion for relief requested and obtained from the automatic stay or for any injunction against foreclosure or enforcement of Senior Priority Liens made by the any Senior Priority Lien Secured Parties in any Insolvency Proceeding Proceedings;
(C) oppose or Bankruptcy Case with respect otherwise contest any lawful exercise by any Senior Priority Secured Parties of the right to credit bid Senior Priority Lien Debt at any sale in foreclosure of Senior Priority Liens; or
(D) oppose or otherwise contest any other request for judicial relief made in any court by any Senior Priority Secured Party relating to the lawful enforcement of any Senior Priority Lien against the Collateral; provided, however, that notwithstanding the foregoing, both before and during an Insolvency Proceeding, the Junior Priority Secured Parties may take any actions and exercise any and all rights that would otherwise be available to a holder of unsecured claims, including, without limitation, the commencement of Insolvency Proceedings against any Obligor in accordance with applicable law; provided further, however, that the Junior Priority Secured Parties may not challenge the validity, enforceability, perfection or priority of the Senior Priority Liens; and
(I2) object prior to the Remedy Bar Lift Trigger Date, subject to the rights of any consent or approval by the Priority holders of Permitted Prior Liens, including any Priming Lien Secured Parties to Parties, the use of cash or other Collateral, or any similar relief, in any Insolvency Proceeding or Bankruptcy Case with respect to any Obligor, and (ii) the First Priority Lien Secured Parties shall will have the exclusive right to enforce rights and exercise remedies with respect to any Collateral that is part of the Senior First Priority Trust Estate, regardless of whether such Collateral may also be part of the Second Priority Trust Estate, the Third Priority Trust Estate or the Other Junior Lien Trust Estate. Notwithstanding the foregoing, subject to the Parity rights of any holders of Permitted Prior Liens, including any Priming Lien Secured Parties, the Second Priority Secured Parties may enforce rights, exercise remedies and take actions actions:
(A) without any condition or restriction whatsoever, at any time after the Discharge of First Priority Lien Obligations, ;
(B) as necessary subject to perfect a Lien the Collateral Agent's obligation to comply with the Act of Required Debtholders, to instruct the Collateral Agent to foreclose upon and otherwise enforce Second Priority Liens at any Collateral by any method of perfection except through possession or control or time after the Remedy Bar Lift Trigger Date;
(C) as necessary to redeem (subject to the prior Discharge of First Priority Lien Obligations) any Collateral in a creditor's redemption permitted by law or to deliver any notice or demand necessary to enforce any right to claim, take or receive proceeds of Collateral remaining after the Discharge of First Priority Lien Obligations in the event of foreclosure or other enforcement of any prior Lien;
(D) as necessary to perfect or establish the priority (subject to Senior Priority Liens) of the Second Priority Liens upon any Collateral; or
(E) as necessary to create, prove, preserve or protect (but not enforce) the Second Priority Liens securing upon any Collateral.
(3) after the Parity Remedy Bar Lift Trigger Date, subject to the rights of any holders of Permitted Prior Liens, including any Priming Lien Secured Parties, and further subject to the Collateral Agent's obligations to comply with the Act of Required Debtholders, the First Priority Secured Parties and the Second Priority Secured Parties will have the exclusive right to instruct the Collateral Agent to enforce rights and exercise remedies with respect to any Collateral that is part of the First Priority Trust Estate or the Second Priority Trust Estate, regardless of whether such Collateral may also be part of the Third Priority Trust Estate or the Other Junior Lien Trust Estate. Notwithstanding the foregoing, subject to the rights of any holders of Permitted Prior Liens, including any Priming Lien Secured Parties:
(A) the Third Priority Secured Parties may enforce rights, exercise remedies and take actions:
(a) without any condition or restriction whatsoever, at any time after the Discharge of First Priority Lien Obligations and the Discharge of Second Priority Lien Obligations;
(b) as necessary to redeem (subject to the prior Discharge of First Priority Lien Obligations and Discharge of Second Priority Lien Obligations) any Collateral in a creditor's redemption permitted by law or to deliver any notice or demand necessary to enforce any right to claim, take or receive proceeds of Collateral remaining after the Discharge of First Priority Lien Obligations and Discharge of Second Priority Lien Obligations in the event of foreclosure or other enforcement of any prior Lien;
(c) as necessary to perfect or establish the priority (subject to Senior Priority Liens) of the Third Priority Liens upon any Collateral; or
(d) as necessary to create, prove, preserve or protect (but not enforce) the Third Priority Liens upon any Collateral.
(B) the Other Junior Secured Parties may enforce rights, exercise remedies and take actions:
(a) without any condition or restriction whatsoever, at any time after the Discharge of First Priority Lien Obligations, the Discharge of the Second Priority Lien Obligations and the Discharge of Third Priority Lien Obligations;
(b) as necessary to redeem (subject to the prior Discharge of First Priority Lien Obligations, the Discharge of Second Priority Lien Obligations and the Discharge of Third Priority Lien Obligations) any Collateral in a creditor's redemption permitted by law or to deliver any notice or demand necessary to enforce any right to claim, take or receive proceeds of Collateral remaining after the Discharge of First Priority Lien Obligations, the Discharge of Second Priority Lien Obligations and the Discharge of Third Priority Lien Obligations in the event of foreclosure or other enforcement of any prior Lien;
(c) as necessary to perfect or establish the priority (subject to Senior Priority Liens) of the Other Junior Liens upon any Collateral; or
(d) as necessary to create, prove, preserve or protect (but not enforce) the Other Junior Liens upon any Collateral.
(d) In exercising rights and remedies with respect to the Collateral, subject to the rights of any holders of Permitted Prior Liens, including any Priming Lien Secured Parties, the First Priority Debt Representatives Secured Parties and, after the Remedy Bar Lift Trigger Date, but subject to the Collateral Agent's obligation to comply with the Act of Required Debtholders, the Second Priority Secured Parties, may enforce (or refrain from enforcing) the provisions of the Priority Lien Security Documents and exercise (or refrain from exercising) remedies thereunder or any such rights and remediesremedies available at law or in equity, all in such order and in such manner as they may determine in the exercise of their sole and exclusive discretion, including including:
(i1) the exercise or forebearance forbearance from exercise of all rights and remedies in respect of the Collateral and/or the Priority Lien Obligations, applicable Liens;
(ii2) the enforcement or forbearance from enforcement of any Lien in respect of the Collateral, ;
(iii) the release, with or without consideration, of the Collateral from the Senior Trust Estate, and, in connection with any such release, the concurrent release, with or without consideration (as determined by the Priority Lien Secured Parties), of such collateral from the Junior Trust Estate, (iv3) the exercise or forebearance forbearance from exercise of rights and powers of a holder of shares of stock included in the Senior Trust Estate Collateral to the extent provided in the Security Documents, ;
(v4) the acceptance of the Collateral in full or partial satisfaction of the Priority Lien Obligations and applicable Obligations; and
(vi5) the exercise or forebearance forbearance from exercise of all rights and remedies of a secured lender under the UCC or any similar law of any applicable jurisdiction or in equity.
(e) Without in any way limiting the generality of the foregoing paragraphs, the Priority Lien Secured Parties may, at any time and from time to time, without the consent of or notice The parties hereto agree that:
(1) Prior to the Parity Lien Secured Parties, without incurring responsibility to the Parity Lien Secured Parties and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder Discharge of the Parity Lien Secured Parties, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the First Priority Lien Obligations, the Second Priority Secured Parties and the Collateral Agent may not assert or otherwise amend or supplement enforce any right of marshalling accorded to a junior lienholders, as against the First Priority Secured Parties (in any manner their capacity as priority lienholders), under equitable principles.
(2) Prior to the Discharge of First Priority Lien Obligations and the Discharge of Second Priority Lien Obligations, the Third Priority Secured Parties and the Collateral Agent may not assert or enforce any instrument evidencing right of marshalling accorded to a junior lienholders, as against the First Priority Lien Obligations Secured Parties or any agreement the Second Priority Secured Parties (each, in their capacity as priority lienholders), under which equitable principles.
(3) Prior to the Priority Lien Obligations are outstanding, (ii) release any Person or entity liable in any manner for the collection Discharge of the First Priority Lien Obligations, (iii) release the Lien on any Collateral securing the Discharge of Second Priority Lien Obligations and the Discharge of Third Priority Lien Obligations, the Other Junior Secured Parties and the Collateral Agent may not assert or enforce any right of marshalling accorded to a junior lienholders, as against the First Priority Secured Parties, the Second Priority Secured Parties or the Third Priority Secured Parties (iv) exercise or refrain from exercising any rights against any Obligoreach, in their capacity as priority lienholders), under equitable principles.
(f) The doctrine of marshalling of assets or collateral or any other legal or equitable principle or doctrine which could otherwise, in any way, constrain, limit or affect the order or manner of the enforcement against any Person obligated Except for the Priority Lien Obligations or the liquidation of payments received free from the Senior Trust Estate shall not be applicable to the Senior Trust Estate or Priority Liens as provided in Section 2.5(g), subject to the rights of any holders of Permitted Prior Liens, including any Priming Lien Secured Parties, (i) all proceeds of Collateral received by any Junior Priority Debt Representative, the Collateral Agent or any holder of Junior Priority Liens at any time prior to the Discharge of Senior Priority Lien Obligations, will be held by such Junior Priority Debt Representative, the Collateral Agent or such holder, as the case may be, for the account of the holders of Senior Priority Liens and remitted to the applicable Senior Priority Debt Representative in accordance with the terms of the Senior Priority Debt Documents.
(g) Except for payments that are made from or constitute proceeds of property subject to Senior Priority Liens and that are received by any Junior Priority Debt Representative 44 or the Collateral Agent or any holder of Junior Priority Lien Obligations at any time prior to the Discharge of Senior Priority Lien Obligations and after (i) the commencement of any Insolvency Proceeding in respect of the Company or any other Obligor or (ii) any Junior Priority Debt Representative and the Collateral Agent have received written notice from any Senior Priority Debt Representative stating that (A) any Senior Priority Lien Debt has become due and payable in full (whether at maturity, upon acceleration or otherwise) or (B) the holders of Senior Priority Liens have become entitled to and desire to enforce any or all of the Priority Liens by reason of a default under any Senior Priority Debt Document:
(1) no payment of money (or the equivalent of money) made by the Company or any other Obligor to any Junior Priority Debt Representative, the Collateral Agent or any other holder of Junior Priority Lien Secured Parties Obligations (including, without limitation, payments and prepayments made for application to Junior Priority Lien Obligations and all other payments and deposits made pursuant to any provision of the Junior Priority Debt Document) will in any event be the subject to the foregoing provisions of this Section 2.5; and
(2) all payments permitted to be received under this AgreementSection 2.5(g) will be received by the applicable Junior Priority Debt Representative, the Collateral Agent and other holders of Junior Priority Lien Obligations free from the Senior Priority Liens and all other Liens except the Junior Priority Liens.
Appears in 1 contract
Samples: Collateral Trust and Intercreditor Agreement (Delta Energy Center, LLC)
