Security Interests Priorities Remedies. 2.1 Each Agent hereby acknowledges that the Metals Bank’s consignment interest in the Metals Collateral and the security interests granted by Borrowers to Metals Bank in the Metals Collateral shall constitute a first priority secured Lien upon the Metals Collateral to secure the Metals Obligations; provided, however, that the aggregate amount of the Metals Bank’s Lien upon the Metals Collateral which shall be entitled to priority over the Liens in favor of the First Lien Creditors and the Second Lien Creditors shall not exceed an amount (the “Metals Obligations Lien Priority Limit”) calculated from time to time as the least of: (a) the total amount of the Metals Obligations, (b) the Value of one hundred fifteen percent (115%) of the total quantity of Consigned Precious Metal outstanding under the Metals Agreement as determined in accordance with the Metals Agreement, and (c) the Value of forty-six thousand (46,000) fine xxxx ounces of Platinum. Agents hereby consent to such Liens in favor of Metals Bank. 2.2 Notwithstanding 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 any Creditor Representative in any Collateral, and notwithstanding any conflicting terms or conditions which may be contained in any of the Transaction Documents, the Liens upon the Metals Collateral in favor of the Metals Bank have and shall have priority, up to the Metals Obligations Lien Priority Limit, over the Liens upon the Metals Collateral in favor of the First Lien Creditors and the Second Lien Creditors, or any of them, and such Liens of such First Lien Creditors and Second Lien Creditors are and shall be, in all respects, subject and subordinate to the Liens of the Metals Bank therein up to the Metals Obligations Lien Priority Limit. 2.3 The Lien priorities provided in Sections 2.1 and 2.2 shall not be altered or otherwise affected by any amendment, modification, supplement, extension, renewal, restatement or refinancing of the First Lien Debt, the Second Lien Debt or the Metals Obligations, or by any action or inaction which any Creditor may take or fail to take in respect of any of the Collateral. 2.4 Metals Bank shall be solely responsible for perfecting and maintaining the perfection of its Liens in and to each item constituting the Metals Collateral in which it has been granted a Lien. The foregoing provisions of this Agreement (and, as between the First Lien Creditors and the Second Lien Creditors, the provisions of the Existing Intercreditor Agreement) are intended solely to govern the respective Lien priorities as between the Creditors and shall not impose on any Creditor any obligations in respect of the disposition of proceeds of foreclosure on any Collateral which would conflict with prior perfected claims therein in favor of any other person or any order or decree of any court or other governmental authority or any applicable law. Each Creditor Representative agrees that it will not contest the validity, perfection, priority or enforceability of the Liens upon the Metals Collateral in favor of the other Creditor Representatives and agrees that as between the Creditors, the terms of this Agreement shall govern even if part or all of the Metals Obligations or the Liens securing payment and performance thereof are avoided, disallowed, set aside or otherwise invalidated in any judicial proceeding or otherwise. 2.5 Except as otherwise provided in this Agreement (including, without limitation, in Section 2.5, and in Section 2.7), (a) Metals Bank shall have the exclusive right to manage, perform and enforce the terms of the Metals Documents with respect to the Metals Obligations, (b) to exercise and enforce all privileges and rights thereunder according to its discretion and the exercise of its business judgment, and (c) subject to the provisions of Section 2.6 hereof, the exclusive right to take or retake control or possession of the Metals Collateral and to hold, prepare for sale, process, sell, lease, dispose of, refine, melt down or liquidate the Metals Collateral until Payment in Full is received by Metals Bank. Until the final payment and satisfaction in full of the Metals Obligations and termination of Metals Bank’s obligations under the Metals Documents (or, if earlier, the receipt by Metals Bank of Net Proceeds from Liquidation of Metals Collateral in an amount equal to the Metals Obligations Lien Priority Limit), the Agents may not take any action to enforce their respective Liens in the Metals Collateral or assert any claims or interests therein; provided, however, that the First Lien Agent (or, if the First Lien Debt has been paid in full, the Second Lien Agent) shall be responsible for conducting, as agent for Metals Bank and the other Creditor Representatives, all negotiations or proceedings on behalf of the Creditor Representatives involving any condemnation of the Metals Collateral or any part thereof or involving any insurance that may be available for loss of or damage to the Metals Collateral or any part thereof; and provided further, however, that the First Lien Agent (or the Second Lien Agent, if applicable) shall not elect to terminate negotiations, shall not refuse or fail to file a claim, and shall not accept or agree to any settlement of any claim involving condemnation proceeds or insurance proceeds in respect to the Metals Collateral (unless such settlement or compromise results in payment in full of the Metals Obligations Lien Priority Limit), in each case without the prior written consent of Metals Bank, which consent shall not be unreasonably withheld or delayed. Any settlement or compromise of a condemnation or insurance claim which covers or relates in whole or in part to Metals Collateral shall include a specific dollar allocation for the Metals Collateral portion of such compromise or settlement. All condemnation and insurance proceeds payable in respect to Metals Collateral shall be paid to the First Lien Agent (or, if the First Lien Debt has been paid in full, the Second Lien Agent), as agent for the Creditor Representatives, and such proceeds shall be paid by First Lien Agent (or the Second Lien Agent, if applicable) first to Metals Bank until Metals Bank receives payment in full of all Metals Obligations related to the Platinum included in the Metals Collateral which is the subject of the condemnation or insurance claim (in an amount not to exceed the Metals Obligations Lien Priority Limit), and second the balance will be distributed (i) to the First Lien Agent for application to the First Lien Debt and the Second Lien Debt in accordance with the Existing Intercreditor Agreement, or (ii) to the Second Lien Agent if the First Lien Debt has been paid in full. Each of the Agents agrees that if it shall receive any of the Metals Collateral in violation of this Agreement, it shall hold such Metals Collateral in trust for the benefit of the Metals Bank in accordance with this Agreement and, promptly upon discovery or notice of such violation, turn it over to the Metals Bank in accordance with this Agreement. 2.6 Unless the Agents and Metals Bank mutually agree otherwise, any Liquidation of Metals Collateral shall be conducted and applied as follows until Payment in Full is received by Metals Bank: (a) Metals Collateral in the form of raw metals which are the subject of a Liquidation by Metals Bank, subject to the requirements of Part 6 of Article 9 of the UCC, and the proceeds thereof (after payment of the reasonable out-of-pocket expenses of Liquidation as provided in Section 2.6(c) (“Net Proceeds”)) will be distributed first to Metals Bank until Payment in Full (as defined in Section 2.6(d)); and the balance, if any, after Payment in Full of the Metals Obligations, will be distributed (i) to the First Lien Agent for application to the First Lien Debt and the Second Lien Debt in accordance with the Existing Intercreditor Agreement or (ii) to the Second Lien Agent if the First Lien Debt has been paid in full. (b) Metals Collateral in any other form, including Metals Collateral included in Equipment which contains other precious metal, will be Liquidated by Metals Bank, subject to the requirements of Part 6 of Article 9 of the Uniform Commercial Code, and the Net Proceeds thereof will be distributed first to Metals Bank until the Metals Bank receives Payment in Full of the Metals Obligations; and the balance of the Net Proceeds, if any, will be distributed (i) to the First Lien Agent for application to the First Lien Debt and the Second Lien Debt in accordance with the Existing Intercreditor Agreement or (ii) to the Second Lien Agent if the First Lien Debt has been paid in full. (c) At Metals Bank’s option, Metals Collateral consisting of Platinum in raw material form may be returned to Metals Bank or to a third party for credit to Metals Bank’s account and credited against Borrowers’ Metals Obligations as an ounce-for-ounce credit against outstanding consignment balances until Payment in Full is received by Metals Bank. (d) For the purposes of this Agreement, in connection with any Liquidation of Metals Collateral or any other enforcement of the Metals Bank’s Liens in the Metals Collateral after an Acceleration/Insolvency Event, Metals Bank shall be deemed to have received “Payment in Full” of the Metals Obligations from the Liquidation of the Metals Collateral or any other enforcement of the Metals Bank’s Liens in the Metals Collateral after an Acceleration/Insolvency Event upon Metals Bank’s receipt of payment (either in cash or by return of Precious Metal pursuant to the Metals Agreement, or by some combination thereof) of Metals Obligations equal to the Metals Obligations Lien Priority Limit. 2.7 Each Agent agrees not to assert and hereby waives any right to demand, request, plead or otherwise assert or claim the benefit of, any marshalling or other similar right that may otherwise be available under applicable law. In addition, notwithstanding each Agent’s junior lien on the Metals Collateral, each Agent agrees that, until Payment in Full is received by Metals Bank: (i) it will not hinder or delay Metals Bank in enforcing its rights and remedies with respect to its senior Lien on the Metals Collateral; (ii) the Metals Collateral may be repossessed or removed by Metals Bank at any time and from time to time, and Metals Bank will have access at any time and from time to time to any real property for such purpose, and (iii) the Metals Collateral is, and will remain, personal property at all times hereafter notwithstanding any provision or language to the contrary in any security agreement between an Agent and the Borrowers; provided, however, that the Agents may exercise secured party remedies in respect to the Metals Collateral, subject to the Lien priority in favor of Metals Bank established hereby, if Metals Bank fails to commence its exercise of secured party remedies in respect to the Metals Collateral for a period (the “Standstill Period”) of one hundred eighty (180) consecutive days after its giving or receipt of an Acceleration Notice, unless such failure is caused by the commencement of an Insolvency Proceeding or other legal constraints imposed on Metals Bank by applicable law; and provided further, however, that: (a) in any Insolvency Proceeding commenced by or against any Borrower Party, the Agents, First Lien Creditors and/or Second Lien Creditors may file a proof of claim or statement of interest with respect to the First Lien Debt and/or Second Lien Debt; (b) the Agents, First Lien Creditors and/or Second Lien Creditors shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Agents, First Lien Creditors and/or Second Lien Creditors, including without limitation any claims secured by the Metals Collateral, if any, in each case if not otherwise in contravention of the terms of this Agreement; (c) the Agents, First Lien Creditors and/or Second Lien Creditors shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Borrower Parties arising under either the United States Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors or applicable non-bankruptcy law, in each case if not otherwise in contravention of the terms of this Agreement; (d) the Agents, First Lien Creditors and/or Second Lien Creditors shall be entitled to file any proof of claim and other filings and make any arguments and motions in order to preserve or protect its Liens on the Metals Collateral that are, in each case, not otherwise in contravention of the terms of this Agreement, with respect to the First Lien Debt, Second Lien Debt and/or the Metals Collateral; (e) the Agents, First Lien Creditors and/or Second Lien Creditors may exercise any of its rights or remedies with respect to the Metals Collateral after the termination of the Standstill Period; and (f) there shall be no more than one (1) Standstill Period in any period of three hundred sixty-five (365) consecutive days. 2.8 Metals Bank acknowledges and agrees that it holds no Lien on any assets of the Borrowers other than the Metals Collateral and Metals Bank agrees that it will not contest the validity, perfection, priority or enforceability of any such Liens claimed by the Agents in such assets of the Borrowers. 2.9 The Agents hereby acknowledge, confirm and agree that their respective rights and priorities, inter se, in and to all Collateral shall continue to be subject to and governed by the Existing Intercreditor Agreement which shall remain in full force and effect and is hereby ratified and affirmed by the Agents.
Appears in 2 contracts
Samples: Intercreditor Agreement, Intercreditor Agreement (AGY Holding Corp.)
Security Interests Priorities Remedies. 2.1 (a) Each Agent hereby acknowledges that the Metals Bank’s consignment interest in the Metals Collateral and the security interests granted by Borrowers to Metals Bank in the Metals Collateral shall constitute a first priority secured Lien upon the Metals Collateral to secure the Metals Obligations; provided, however, that the aggregate amount of the Metals Bank’s Lien upon the Metals Collateral which shall be entitled to priority over the Liens in favor of the First Lien Creditors and the Second Collateral Agent agrees that it will not obtain or acquire a further Lien Creditors shall over any Collateral without the prior written consent of both Creditors. The Obligor agrees that it will not exceed an amount (grant to any Creditor, the “Metals Obligations Collateral Agent or any other Person, a further Lien Priority Limit”) calculated from time to time over any Collateral, without the prior written consent of both Creditors, except as the least of: (a) the total amount of the Metals Obligations, provided herein.
(b) the Value of one hundred fifteen percent (115%) of the total quantity of Consigned Precious Metal outstanding under the Metals Agreement as determined in accordance with the Metals Agreement, and (c) the Value of forty-six thousand (46,000) fine xxxx ounces of Platinum. Agents hereby consent to such Liens in favor of Metals Bank.
2.2 Notwithstanding 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 any each Creditor Representative or the Collateral Agent in any Collateral, and notwithstanding any conflicting terms or conditions which may be contained in any of the Transaction DocumentsSecurity Agreements, with respect to the Collateral, the Liens upon the Metals all Collateral in favor of the Metals Bank have and shall have priority, up to the Metals Obligations Lien Priority Limit, over extent of all PI Debt shall be treated pari passu with the Liens upon all Collateral to the Metals Collateral in favor extent of the First Lien Creditors Vicis Payment, with any proceeds of such Collateral to be applied pro rata based on the outstanding PI Debt and the Second Lien Creditorsoutstanding Vicis Payment.
(c) The proceeds of any sale, disposition or .other realization upon all or any of them, and such Liens of such First Lien Creditors and Second Lien Creditors are and shall be, in all respects, subject and subordinate to the Liens part of the Metals Bank therein up to Collateral arising outside of the Metals Obligations Lien Priority LimitObligor’s ordinary course of business shall be applied pro rata based on outstanding PI Debt and the outstanding Vicis Payment.
2.3 (d) The Lien lien priorities provided in Sections 2.1 and 2.2 this Section 2 shall not be altered or otherwise affected by any amendment, modification, supplement, extension, renewal, restatement restatement, replacement or refinancing of the First Lien Vicis Payment or the PI Debt, the Second Lien Debt or the Metals Obligations, or nor by any action or inaction which any Creditor or the Collateral Agent may take or fail to take in respect of any of the Collateral, except to the extent Vicis and PI have consented thereto in writing.
2.4 Metals Bank (e) The Collateral Agent shall be solely responsible for perfecting and maintaining the perfection of its Liens Lien for the benefit of the Creditors; provided that the Collateral Agent shall have no liability to any Creditor for failure to maintain the perfection of its Lien so long as the Collateral Agent has used commercially reasonable efforts to maintain such perfection and has not acted in and to each item constituting the Metals Collateral in which it has been granted a Liendiscriminatory manner toward any Creditor. The foregoing provisions of this Intercreditor Agreement (and, as between the First Lien Creditors and the Second Lien Creditors, the provisions of the Existing Intercreditor Agreement) are intended solely to govern the respective Lien priorities as between among the Creditors and the Collateral Agent and shall not impose on any Creditor or the Collateral Agent any obligations in respect of the disposition of proceeds of foreclosure on any Collateral which would conflict with prior perfected claims therein in favor of any other person or any order or decree of any court or other governmental authority or any applicable law. Each Creditor Representative of the Creditors and the Collateral Agent agrees that it will not contest the validity, perfection, priority or enforceability of the Liens upon the Metals Collateral in favor of the other Creditor Representatives and agrees that Creditors or the Collateral Agent, as between applicable. To the Creditors, the terms extent any of this Agreement shall govern even if part or all of the Metals Obligations or the Liens securing payment and performance thereof of the Vicis Payment or the PI Debt are avoided, disallowed, set aside or otherwise invalidated in any judicial proceeding or otherwise, neither the Creditor holding such rights nor the Collateral Agent shall be entitled to claim the benefit of this Intercreditor Agreement in respect thereof unless such Creditor or the Collateral Agent, as applicable, shall be diligently contesting the matter or appealing a proceeding and has provided the other Creditors and/or the Collateral Agent, as applicable, with an indemnity satisfactory to such parties which have the benefit of the indemnity.
2.5 Except (f) Each of the Creditors and the Collateral Agent shall (a) in connection with a sale or other disposition of Collateral by the Collateral Agent thereon, or by the Obligor with the consent of the Collateral Agent, immediately upon the request of the Collateral Agent release or otherwise terminate its Liens on such Collateral and immediately deliver such other release documents as the Collateral Agent may reasonably require in connection with such sale or disposition so long as no such releases or terminations are effective or released until such time as the sale or disposition is completed and the Collateral Agent has determined that such sale or other disposition is commercially reasonable under the circumstances based on such information available to the Collateral Agent relevant to such determination and (b) shall be deemed to have consented under its Agreements to such sale or other disposition. To the extent any Creditor or the Collateral Agent may be required to hereunder, or shall otherwise provided release or otherwise terminate its Liens on such Collateral, any requirement that such Creditor or the Collateral Agent consent to such sale or other disposition in this Agreement the Agreements of such Creditor or the Collateral Agent with Obligor shall not be applicable. Any sale of Collateral by the Collateral Agent (other than sales supervised by a court) shall be conducted in a commercially reasonable manner.
(g) Until the PI Debt and the Vicis Payment reach their respective maturities, which maturities shall not be extended by the Creditor holding such rights without the prior written consent of the other Creditor, neither Creditor will, directly or indirectly through the Collateral Agent or otherwise, nor shall the Collateral Agent:
(i) exercise any of its rights or remedies upon a default or event of default by the Obligor with respect to the PI Debt or Vicis Payment, as applicable;
(ii) seek to foreclose or realize upon (judicially or non-judicially) its Lien on such Collateral or assert any claims or interest therein (including, without limitation, by setoff or notification of account debtors); or
(iii) take any other action that would interfere in Section 2.5any manner with the rights of any Creditor or the Collateral Agent in such Collateral. Notwithstanding any other provision in this Intercreditor Agreement, from and in Section 2.7)after the date that the PI Debt and the Vicis Payment reach their respective stated maturities, (a) Metals Bank which maturity shall have not be extended by the exclusive right to manage, perform and enforce Creditor holding such rights without the terms prior written consent of the Metals Documents with respect other Creditor, either PI or Vicis may require the Collateral Agent to enforce any Liens against the Metals Obligations, Collateral.
(bh) to exercise and enforce all privileges and rights thereunder according to its discretion and the exercise of its business judgment, and (c) subject to the provisions of Section 2.6 hereof, the exclusive right to take or retake control or possession Neither of the Metals Creditors nor the Collateral and to holdAgent shall challenge, prepare for salecontest or bring into question the validity, processpriority, sell, lease, dispose of, refine, melt down perfection or liquidate the Metals Collateral until Payment enforceability of any Liens granted by any Obligor in Full is received by Metals Bank. Until the final payment and satisfaction in full favor of the Metals Obligations and termination of Metals Bank’s obligations under the Metals Documents (or, if earlier, the receipt by Metals Bank of Net Proceeds from Liquidation of Metals Collateral in an amount equal to the Metals Obligations Lien Priority Limit), the Agents may not take any action to enforce their respective Liens in the Metals Collateral or assert any claims or interests therein; provided, however, that the First Lien Agent (or, if the First Lien Debt has been paid in full, the Second Lien Agent) shall be responsible for conducting, as agent for Metals Bank and the other Creditor Representatives, all negotiations or proceedings on behalf of the Creditor Representatives involving any condemnation of the Metals Collateral or any part thereof or involving any insurance that may be available for loss of or damage to the Metals Collateral or any part thereof; and provided further, however, that the First Lien Agent (or the Second Lien AgentCollateral Agent or, if applicablesubject to Section 2(g), any enforcement steps taken thereunder by the other Creditor or the Collateral Agent in accordance with this Agreement and the Security Agreements.
(i) The Obligor shall not elect to terminate negotiations, shall not refuse or fail to file a claimnot, and shall cause its subsidiaries not accept or agree to, make any Restricted Payment to any settlement of Creditor, and no Creditor shall accept any claim involving condemnation proceeds or insurance proceeds in respect to the Metals Collateral (unless such settlement or compromise results in payment in full of the Metals Obligations Lien Priority Limit)Restricted Payment, in each case without the prior written consent of Metals Bank, which consent shall not the other Creditor. Should any payment or distribution or security or instrument or proceeds thereof be unreasonably withheld or delayed. Any settlement or compromise of received by a condemnation or insurance claim which covers or relates in whole or in part Creditor that rightfully belong to Metals Collateral shall include a specific dollar allocation for the Metals Collateral portion of such compromise or settlement. All condemnation and insurance proceeds payable in respect to Metals Collateral shall be paid to the First Lien Agent (or, if the First Lien Debt has been paid in full, the Second Lien Agent), as agent for the another Creditor Representatives, and such proceeds shall be paid by First Lien Agent (or the Second Lien Agent, if applicable) first to Metals Bank until Metals Bank receives payment in full of all Metals Obligations related to the Platinum included in the Metals Collateral which is the subject of the condemnation or insurance claim (in an amount not to exceed the Metals Obligations Lien Priority Limit), and second the balance will be distributed (i) to the First Lien Agent for application to the First Lien Debt and the Second Lien Debt in accordance with the Existing Intercreditor Agreement, or (ii) to the Second Lien Agent if the First Lien Debt has been paid in full. Each of the Agents agrees that if it shall receive any of the Metals Collateral in violation of under this Agreement, it such Creditor shall receive and hold such Metals Collateral the same in trust trust, as trustee, for the benefit of the Metals Bank in accordance with this Agreement andother Creditor, promptly upon discovery or notice segregated from other funds and property of such violationCreditor, turn it over and such Creditor shall forthwith deliver the same to the Metals Bank in accordance other Creditor (together with this Agreementany endorsement or assignment of such Creditor where necessary) such amount to be allocated to the other Creditor.
2.6 Unless (j) Each Creditor shall give to the Agents and Metals Bank mutually agree otherwiseother Creditor concurrently with the giving thereof to the Obligor, any Liquidation of Metals Collateral shall be conducted and applied as follows until Payment in Full is received by Metals Bank:
(a) Metals Collateral in a copy of any written notice by such Creditor of either a default or an event of default under its Agreements with the form Obligor, or written notice of raw metals which are demand of payment from the subject of a Liquidation by Metals Bank, subject to the requirements of Part 6 of Article 9 of the UCCObligor, and the proceeds thereof (after payment of the reasonable out-of-pocket expenses of Liquidation as provided in Section 2.6(c) (“Net Proceeds”)) will be distributed first to Metals Bank until Payment in Full (as defined in Section 2.6(d)); and the balance, if any, after Payment in Full of the Metals Obligations, will be distributed (i) to the First Lien Agent for application to the First Lien Debt and the Second Lien Debt in accordance with the Existing Intercreditor Agreement or (ii) to the Second Lien Agent if the First Lien Debt has been paid in full.
(b) Metals Collateral in any other form, including Metals Collateral included in Equipment which contains other precious metal, will be Liquidated written notice sent by Metals Bank, subject such Creditor to the requirements of Part 6 of Article 9 of the Uniform Commercial Code, and the Net Proceeds thereof will be distributed first to Metals Bank until the Metals Bank receives Payment in Full of the Metals Obligations; and the balance of the Net Proceeds, if any, will be distributed (i) to the First Lien Agent for application to the First Lien Debt and the Second Lien Debt in accordance with the Existing Intercreditor Agreement or (ii) to the Second Lien Agent if the First Lien Debt has been paid in full.
(c) At Metals Bank’s option, Metals Collateral consisting of Platinum in raw material form may be returned to Metals Bank or to a third party for credit to Metals Bank’s account and credited against Borrowers’ Metals Obligations as an ounce-for-ounce credit against outstanding consignment balances until Payment in Full is received by Metals Bank.
(d) For the purposes of this Agreement, in connection with any Liquidation of Metals Collateral or any other enforcement of the Metals Bank’s Liens in the Metals Collateral after an Acceleration/Insolvency Event, Metals Bank shall be deemed to have received “Payment in Full” of the Metals Obligations from the Liquidation of the Metals Collateral or any other enforcement of the Metals Bank’s Liens in the Metals Collateral after an Acceleration/Insolvency Event upon Metals Bank’s receipt of payment (either in cash or by return of Precious Metal pursuant to the Metals Agreement, or by some combination thereof) of Metals Obligations equal to the Metals Obligations Lien Priority Limit.
2.7 Each Agent agrees not to assert and hereby waives any right to demand, request, plead or otherwise assert or claim the benefit of, any marshalling or other similar right that may otherwise be available under applicable law. In addition, notwithstanding each Agent’s junior lien on the Metals Collateral, each Agent agrees that, until Payment in Full is received by Metals Bank: (i) it will not hinder or delay Metals Bank in enforcing its rights and remedies with respect to its senior Lien on the Metals Collateral; (ii) the Metals Collateral may be repossessed or removed by Metals Bank Obligor at any time and from time an event of default under such Creditor’s Agreements exists stating such Creditor’s intention to time, and Metals Bank will have access at any time and from time to time to any real property for such purpose, and (iii) the Metals Collateral is, and will remain, personal property at all times hereafter notwithstanding any provision or language to the contrary in any security agreement between an Agent and the Borrowers; provided, however, that the Agents may exercise secured party remedies in respect to the Metals Collateral, subject to the Lien priority in favor of Metals Bank established hereby, if Metals Bank fails to commence its exercise of secured party remedies in respect to the Metals Collateral for a period (the “Standstill Period”) of one hundred eighty (180) consecutive days after its giving or receipt of an Acceleration Notice, unless such failure is caused by the commencement of an Insolvency Proceeding or other legal constraints imposed on Metals Bank by applicable law; and provided further, however, that:
(a) in any Insolvency Proceeding commenced by or against any Borrower Party, the Agents, First Lien Creditors and/or Second Lien Creditors may file a proof of claim or statement of interest with respect to the First Lien Debt and/or Second Lien Debt;
(b) the Agents, First Lien Creditors and/or Second Lien Creditors shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Agents, First Lien Creditors and/or Second Lien Creditors, including without limitation any claims secured by the Metals Collateral, if any, in each case if not otherwise in contravention of the terms of this Agreement;
(c) the Agents, First Lien Creditors and/or Second Lien Creditors shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Borrower Parties arising under either the United States Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors or applicable non-bankruptcy law, in each case if not otherwise in contravention of the terms of this Agreement;
(d) the Agents, First Lien Creditors and/or Second Lien Creditors shall be entitled to file any proof of claim and other filings and make any arguments and motions in order to preserve or protect its Liens on the Metals Collateral that are, in each case, not otherwise in contravention of the terms of this Agreement, with respect to the First Lien Debt, Second Lien Debt and/or the Metals Collateral;
(e) the Agents, First Lien Creditors and/or Second Lien Creditors may exercise any of its enforcement rights or remedies with respect remedies, including written notice pertaining to the Metals Collateral after the termination any foreclosure on any of the Standstill PeriodCollateral or other judicial or non-judicial remedy in respect thereof, and any legal process served or filed in connection therewith; provided, that, the foregoing does not affect any prohibition in this Intercreditor Agreement on a Creditor taking such steps and
(f) there ; provided further that the failure of any party to give notice as required hereby shall be no more than one (1) Standstill Period in any period of three hundred sixty-five (365) consecutive days.
2.8 Metals Bank acknowledges and agrees that it holds no Lien on any assets not affect the relative priorities of the Borrowers other than Creditors’ or Collateral Agent’s respective Liens as provided herein or the Metals Collateral and Metals Bank agrees that it will not contest the validity, perfection, priority validity or enforceability effectiveness of any such Liens claimed notice as against the Obligor and shall not give rise to any claim or cause of action by any Creditor against the Agents in such assets other Creditor. Each Creditor shall, upon the request of the Borrowersother Creditor, provide to such other Creditor a statement of the amount of the indebtedness of the Obligor then owing to it. The Obligor hereby authorizes and consents to each Creditor sending any such notices and other information to the other Creditor.
2.9 The Agents hereby acknowledge(k) In the event that any of the Creditors or the Collateral Agent shall, confirm and agree that their in the exercise of its respective rights under its Agreements or otherwise, receive possession or control of any books and prioritiesrecords of the Obligor that contain information identifying or pertaining to any of the property of the Obligor in which the-other Creditor or the Collateral Agent has been granted a Lien, inter seit shall notify the other Creditor or the Creditors, in as applicable, that it has received such books and records and shall, as promptly as practicable thereafter, make available to all Collateral shall continue to be subject to the other Creditor or the Creditors, as applicable, such books and governed by the Existing Intercreditor Agreement which shall remain in full force records for inspection and effect and is hereby ratified and affirmed by the Agentsduplication.
Appears in 1 contract
Security Interests Priorities Remedies. 2.1 Each Agent Creditor hereby acknowledges that the Metals Bank’s consignment interest in the Metals Collateral and the security interests other Creditor has been granted by Borrowers to Metals Bank in the Metals Collateral shall constitute a first priority secured Lien upon the Metals Collateral to secure the Metals Obligations; provided, however, that the aggregate amount of the Metals Bank’s Lien upon the Metals Collateral which shall be entitled to priority over the Liens in favor of the First Lien Creditors and the Second Lien Creditors shall not exceed an amount (the “Metals Obligations Lien Priority Limit”) calculated from time to time as the least of: (a) the total amount of the Metals Obligations, (b) the Value of one hundred fifteen percent (115%) of the total quantity of Consigned Precious Metal outstanding under the Metals Agreement as determined in accordance with the Metals Agreement, and (c) the Value of forty-six thousand (46,000) fine xxxx ounces of Platinum. Agents hereby consent to such Liens in favor of Metals BankCollateral.
2.2 Notwithstanding 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 any each Creditor Representative in any Collateral, and notwithstanding any conflicting terms or conditions which may be contained in any of the Transaction DocumentsAgreements, the Liens upon the Metals Collateral in favor of the Metals Bank Senior Creditor have and shall have priority, up to the Metals Obligations Lien Priority Limit, priority over the Liens upon the Metals Collateral in favor of the First Lien Creditors and the Second Lien Creditors, or any of them, Junior Creditor and such Liens of such First Lien Creditors and Second Lien Creditors Junior Creditor are and shall be, in all respects, subject and subordinate to the Liens of the Metals Bank Senior Creditor therein up to the Metals Obligations Lien Priority Limitfull extent of the Senior Debt.
2.3 The Lien lien priorities provided in Sections 2.1 and Section 2.2 shall not be altered or otherwise affected by any amendment, modification, supplement, extension, renewal, restatement or refinancing of either the First Lien Debt, the Second Lien Senior Debt or the Metals ObligationsJunior Debt, or nor by any action or inaction which any Creditor may take or fail to take in respect of any of the Collateral.
2.4 Metals Bank Each Creditor shall be solely responsible for perfecting and maintaining the perfection of its Liens Lien in and to each item constituting the Metals Collateral in which it such Creditor has been granted a Lien. The foregoing provisions of this Agreement (and, as between the First Lien Creditors and the Second Lien Creditors, the provisions of the Existing Intercreditor Agreement) are intended solely to govern the respective Lien lien priorities as between the Creditors and shall not impose on any Senior Creditor any obligations in respect of the disposition of proceeds of foreclosure on any Collateral which would conflict with prior perfected claims therein in favor of any other person or any order or decree of any court or other governmental authority or any applicable law. Each Creditor Representative agrees that it will not contest the validity, perfection, priority or enforceability of the Liens upon the Metals Collateral in favor of the other Creditor Representatives and agrees that as between the CreditorsSenior Creditor and Junior Creditor, the terms of this Intercreditor Agreement shall govern even if part or all of the Metals Obligations Senior Debt or the Liens securing payment and performance thereof are not perfected or are avoided, disallowed, set aside or otherwise invalidated in any judicial proceeding or otherwise.
2.5 Except as otherwise provided in this Agreement (including, without limitation, in Section 2.5, and in Section 2.7), (a) Metals Bank Senior Creditor shall have the exclusive right to manage, perform and enforce the terms of the Metals Documents Senior Creditor Agreements with respect to the Metals ObligationsCollateral on which it has a Lien, (b) to exercise and enforce all privileges and rights thereunder according to its discretion and the exercise of its business judgment, and (c) subject to the provisions of Section 2.6 hereofincluding, without limitation, the exclusive right to take or retake control or possession of the Metals such Collateral and to hold, prepare for sale, process, sell, lease, dispose of, refine, melt down or liquidate the Metals Collateral until Payment in Full is received by Metals Bank. Until the final payment and satisfaction in full of the Metals Obligations and termination of Metals Bank’s obligations under the Metals Documents (or, if earlier, the receipt by Metals Bank of Net Proceeds from Liquidation of Metals Collateral in an amount equal such Collateral.
2.6 Notwithstanding anything to the Metals Obligations Lien Priority Limit), the Agents may not take any action to enforce their respective Liens contrary contained in the Metals Collateral or assert any claims or interests therein; provided, however, that the First Lien Agent (or, if the First Lien Debt has been paid in full, the Second Lien Agent) shall be responsible for conducting, as agent for Metals Bank and the other Creditor Representatives, all negotiations or proceedings on behalf of the Creditor Representatives involving any condemnation of the Metals Collateral or any part thereof or involving any insurance that may be available for loss of or damage to the Metals Collateral or any part thereof; and provided further, however, that the First Lien Agent (or the Second Lien Agent, if applicable) shall not elect to terminate negotiations, shall not refuse or fail to file a claim, and shall not accept or agree to any settlement of any claim involving condemnation proceeds or insurance proceeds in respect to the Metals Collateral (unless such settlement or compromise results in payment in full of the Metals Obligations Lien Priority Limit), in each case without the prior written consent of Metals Bank, which consent shall not be unreasonably withheld or delayed. Any settlement or compromise of a condemnation or insurance claim which covers or relates in whole or in part to Metals Collateral shall include a specific dollar allocation for the Metals Collateral portion of such compromise or settlement. All condemnation and insurance proceeds payable in respect to Metals Collateral shall be paid to the First Lien Agent (or, if the First Lien Debt has been paid in full, the Second Lien Agent), as agent for the Creditor Representatives, and such proceeds shall be paid by First Lien Agent (or the Second Lien Agent, if applicable) first to Metals Bank until Metals Bank receives payment in full of all Metals Obligations related to the Platinum included in the Metals Collateral which is the subject of the condemnation or insurance claim (in an amount not to exceed the Metals Obligations Lien Priority Limit), and second the balance will be distributed (i) to the First Lien Agent for application to the First Lien Debt and the Second Lien Debt in accordance with the Existing Intercreditor Agreement, or (ii) to the Second Lien Agent if the First Lien Debt has been paid in full. Each of the Agents agrees that if it shall receive any of the Metals Agreements, only Senior Creditor shall have the right to restrict or permit, or approve or disapprove, the sale, transfer or other disposition of Collateral in violation of this Agreement, which it has a Lien. Junior Creditor shall hold such Metals Collateral in trust for the benefit of the Metals Bank in accordance with this Agreement and, promptly upon discovery or notice of such violation, turn it over to the Metals Bank in accordance with this Agreement.
2.6 Unless the Agents and Metals Bank mutually agree otherwise, any Liquidation of Metals Collateral shall be conducted and applied as follows until Payment in Full is received by Metals Bank:
(a) Metals immediately upon the request of Senior Creditor, release or otherwise terminate its Liens on the Collateral in the form of raw metals which are the subject of a Liquidation by Metals Bank, subject to the requirements extent such Collateral is sold or otherwise disposed of Part 6 either by Senior Creditor, its agents, or Debtor with the consent of Article 9 Senior Creditor and Junior Creditor shall immediately deliver such release documents as Senior Creditor may require in connection therewith, provided, that such release by Junior Creditor shall not extend to or otherwise affect any of the UCC, and the proceeds thereof (after payment of the reasonable out-of-pocket expenses of Liquidation as provided in Section 2.6(c) (“Net Proceeds”)) will be distributed first to Metals Bank until Payment in Full (as defined in Section 2.6(d)); and the balancerights, if any, after Payment in Full of the Metals Obligations, will be distributed (i) Junior Creditor to the First Lien Agent for application to the First Lien Debt and the Second Lien Debt in accordance with the Existing Intercreditor Agreement or (ii) to the Second Lien Agent if the First Lien Debt has been paid in full.
(b) Metals Collateral in proceeds from any other form, including Metals Collateral included in Equipment which contains other precious metal, will be Liquidated by Metals Bank, subject to the requirements of Part 6 of Article 9 of the Uniform Commercial Code, and the Net Proceeds thereof will be distributed first to Metals Bank until the Metals Bank receives Payment in Full of the Metals Obligations; and the balance of the Net Proceeds, if any, will be distributed (i) to the First Lien Agent for application to the First Lien Debt and the Second Lien Debt in accordance with the Existing Intercreditor Agreement or (ii) to the Second Lien Agent if the First Lien Debt has been paid in full.
(c) At Metals Bank’s option, Metals Collateral consisting of Platinum in raw material form may be returned to Metals Bank or to a third party for credit to Metals Bank’s account and credited against Borrowers’ Metals Obligations as an ounce-for-ounce credit against outstanding consignment balances until Payment in Full is received by Metals Bank.
(d) For the purposes of this Agreement, in connection with any Liquidation of Metals Collateral or any other enforcement of the Metals Bank’s Liens in the Metals Collateral after an Acceleration/Insolvency Event, Metals Bank shall be deemed to have received “Payment in Full” of the Metals Obligations from the Liquidation of the Metals Collateral or any other enforcement of the Metals Bank’s Liens in the Metals Collateral after an Acceleration/Insolvency Event upon Metals Bank’s receipt of payment (either in cash or by return of Precious Metal pursuant to the Metals Agreement, or by some combination thereof) of Metals Obligations equal to the Metals Obligations Lien Priority Limit.
2.7 Each Agent agrees not to assert and hereby waives any right to demand, request, plead or otherwise assert or claim the benefit of, any marshalling such sale or other similar right that may otherwise be available under applicable law. In addition, notwithstanding each Agent’s junior lien on the Metals Collateral, each Agent agrees that, until Payment in Full is received by Metals Bank: (i) it will not hinder or delay Metals Bank in enforcing its rights and remedies with respect to its senior Lien on the Metals Collateral; (ii) the Metals disposition of Collateral may be repossessed or removed by Metals Bank at any time and from time to time, and Metals Bank will have access at any time and from time to time to any real property for such purpose, and (iii) the Metals Collateral is, and will remain, personal property at all times hereafter notwithstanding any provision or language to the contrary in any security agreement between an Agent and the Borrowers; provided, however, that the Agents may exercise secured party remedies in respect to the Metals Collateral, subject to the Lien priority in favor of Metals Bank established hereby, if Metals Bank fails to commence its exercise of secured party remedies in respect to the Metals Collateral for a period (the “Standstill Period”) of one hundred eighty (180) consecutive days after its giving or receipt of an Acceleration Notice, unless such failure is caused by the commencement of an Insolvency Proceeding or other legal constraints imposed on Metals Bank by applicable law; and provided further, however, that:
(a) in any Insolvency Proceeding commenced by or against any Borrower Party, the Agents, First Lien Creditors and/or Second Lien Creditors may file a proof of claim or statement of interest with respect to the First Lien Debt and/or Second Lien Debt;
(b) the Agents, First Lien Creditors and/or Second Lien Creditors shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Agents, First Lien Creditors and/or Second Lien Creditors, including without limitation any claims secured by the Metals Collateral, if any, in each case if not otherwise in contravention of the terms of this Agreement;
(c) the Agents, First Lien Creditors and/or Second Lien Creditors shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Borrower Parties arising under either the United States Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors or applicable non-bankruptcy law, in each case if not otherwise in contravention of the terms of this Agreement;
(d) the Agents, First Lien Creditors and/or Second Lien Creditors shall be entitled to file any proof of claim and other filings and make any arguments and motions in order to preserve or protect its Liens on the Metals Collateral that are, in each case, not otherwise in contravention of the terms of this Agreement, with respect to the First Lien Debt, Second Lien Debt and/or the Metals Collateral;
(e) the Agents, First Lien Creditors and/or Second Lien Creditors may exercise any of its rights or remedies with respect to the Metals Collateral after the termination of the Standstill Period; and
(f) there shall be no more than one (1) Standstill Period in any period of three hundred sixty-five (365) consecutive days.
2.8 Metals Bank acknowledges and agrees that it holds no Lien on any assets of the Borrowers other than the Metals Collateral and Metals Bank agrees that it will not contest the validity, perfection, priority or enforceability of any such Liens claimed by the Agents in such assets of the Borrowers.
2.9 The Agents hereby acknowledge, confirm and agree that their respective rights and priorities, inter se, in and to all Collateral shall continue to be subject to and governed by the Existing Intercreditor Agreement which shall remain in full force and effect and is hereby ratified and affirmed by the Agents.
Appears in 1 contract
Samples: Loan and Security Agreement (Poindexter J B & Co Inc)
Security Interests Priorities Remedies. 2.1 Each Agent 4.1 The Trustee, on behalf of the holders of Notes Secured Obligations, any Agent, the New Bar Mill Lenders and each Existing Secured Creditor hereby acknowledges acknowledge that the Metals Bank’s consignment interest in the Metals Collateral and the security interests each such other Secured Creditor has been granted by Borrowers to Metals Bank in the Metals Collateral shall constitute a first priority secured Lien upon the Metals Collateral to secure the Metals Obligations; provided, however, that the aggregate amount some or all of the Metals Bank’s Lien upon Collateral pursuant to the Metals Collateral Security Documents in effect on the date hereof, true and complete copies of which shall be entitled have been made available to priority over the Liens in favor of the First Lien such Secured Creditors and the Second Lien Creditors shall not exceed an amount (the “Metals Obligations Lien Priority Limit”) calculated from time to time as the least of: Collateral Agent.
(a) the total amount of the Metals Obligations, (b) the Value of one hundred fifteen percent (115%) of the total quantity of Consigned Precious Metal outstanding under the Metals Agreement as determined in accordance with the Metals Agreement, and (c) the Value of forty-six thousand (46,000) fine xxxx ounces of Platinum. Agents hereby consent to such Liens in favor of Metals Bank.
2.2 Notwithstanding 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 Lien in favor of any Secured Creditor Representative in any of the Collateral, and notwithstanding any provisions of the UCC or any other applicable law or decision or whether any Secured Creditor holds possession of all or any part of the Collateral, or the granting provisions of any mortgage, security instrument or the provisions of any financing statement or any conflicting terms or conditions which may be contained in any of the Transaction Debt Instruments and Security Documents, each Secured Creditor hereby acknowledges and agrees to the Liens upon the Metals Collateral in favor of the Metals Bank have and shall have priority, up to the Metals Obligations Lien Priority Limit, over the Liens upon the Metals Collateral in favor of the First Lien Secured Creditors set forth below and the Second Lien Creditors, or any of them, and such Liens of such First Lien Creditors and Second Lien Creditors are and shall be, in all respects, subject and subordinate to the Liens of the Metals Bank therein up to the Metals Obligations Lien Priority Limit.
2.3 The Lien relative priorities provided in Sections 2.1 and 2.2 shall not be altered or otherwise affected by any amendment, modification, supplement, extension, renewal, restatement or refinancing of the First Lien Debt, the Second Lien Debt or the Metals Obligations, or by any action or inaction which any Creditor may take or fail to take in respect of any of the Collateral.
2.4 Metals Bank shall be solely responsible for perfecting and maintaining the perfection of its Liens in and to each item constituting the Metals Collateral in which it has been granted a Lien. The foregoing provisions of this Agreement (and, as between the First Lien Creditors and the Second Lien Creditors, the provisions of the Existing Intercreditor Agreement) are intended solely to govern the respective Lien priorities as between the Creditors and shall not impose on any Creditor any obligations thereof in respect of the following categories of Collateral and that upon the sale or other disposition by the Collateral Agent or its agents or employees of the following items of Collateral pursuant to any of the Security Documents, the proceeds of foreclosure on any such sale or disposition shall be delivered by the Collateral which would conflict with prior perfected claims therein in favor Agent to the extent the Secured Creditor is secured by such category of any other person or any order or decree of any court or other governmental authority or any applicable law. Each Creditor Representative agrees that it will not contest the validity, perfection, priority or enforceability of the Liens upon the Metals Collateral in favor of accordance with the other Creditor Representatives and agrees that as between the Creditors, the terms of this Agreement shall govern even if part or all of the Metals Obligations or the Liens securing payment and performance thereof are avoided, disallowed, set aside or otherwise invalidated in any judicial proceeding or otherwise.following priorities:
2.5 Except as otherwise provided in this Agreement (including, without limitation, in Section 2.5, and in Section 2.7), (ai) Metals Bank shall have the exclusive right to manage, perform and enforce the terms of the Metals Documents with respect to the Metals ObligationsMiscellaneous Collateral pledged by the Company: FIRST: The Trustee, (b) to exercise and enforce all privileges and rights thereunder according to its discretion for itself and the exercise of its business judgment, and (c) subject to the provisions of Section 2.6 hereof, the exclusive right to take or retake control or possession holders of the Metals Collateral and to hold, prepare for sale, process, sell, lease, dispose of, refine, melt down or liquidate the Metals Collateral until Payment in Full is received by Metals Bank. Until the final payment and satisfaction in full of the Metals Obligations and termination of Metals Bank’s obligations under the Metals Documents (or, if earlier, the receipt by Metals Bank of Net Proceeds from Liquidation of Metals Collateral in an amount equal to the Metals Obligations Lien Priority Limit), the Agents may not take any action to enforce their respective Liens in the Metals Collateral or assert any claims or interests therein; provided, however, that the First Lien Agent (or, if the First Lien Debt has been paid in full, the Second Lien Agent) shall be responsible for conducting, as agent for Metals Bank and the other Creditor Representatives, all negotiations or proceedings on behalf of the Creditor Representatives involving any condemnation of the Metals Collateral or any part thereof or involving any insurance that may be available for loss of or damage to the Metals Collateral or any part thereof; and provided further, however, that the First Lien Agent (or the Second Lien Agent, if applicable) shall not elect to terminate negotiations, shall not refuse or fail to file a claim, and shall not accept or agree to any settlement of any claim involving condemnation proceeds or insurance proceeds in respect to the Metals Collateral (unless such settlement or compromise results in payment in full of the Metals Obligations Lien Priority Limit), in each case without the prior written consent of Metals Bank, which consent shall not be unreasonably withheld or delayed. Any settlement or compromise of a condemnation or insurance claim which covers or relates in whole or in part to Metals Collateral shall include a specific dollar allocation for the Metals Collateral portion of such compromise or settlement. All condemnation and insurance proceeds payable in respect to Metals Collateral shall be paid to the First Lien Agent (or, if the First Lien Debt has been paid in full, the Second Lien Agent), as agent for the Creditor Representatives, and such proceeds shall be paid by First Lien Agent (or the Second Lien Agent, if applicable) first to Metals Bank until Metals Bank receives payment in full of all Metals Obligations related to the Platinum included in the Metals Collateral which is the subject of the condemnation or insurance claim (in an amount not to exceed the Metals Obligations Lien Priority Limit), and second the balance will be distributed (i) to the First Lien Agent for application to the First Lien Debt and the Second Lien Debt in accordance with the Existing Intercreditor Agreement, or (ii) to the Second Lien Agent if the First Lien Debt has been paid in full. Each of the Agents agrees that if it shall receive any of the Metals Collateral in violation of this Agreement, it shall hold such Metals Collateral in trust for the benefit of the Metals Bank in accordance with this Agreement and, promptly upon discovery or notice of such violation, turn it over to the Metals Bank in accordance with this Agreement.
2.6 Unless the Agents and Metals Bank mutually agree otherwise, any Liquidation of Metals Collateral shall be conducted and applied as follows until Payment in Full is received by Metals Bank:
(a) Metals Collateral in the form of raw metals which are the subject of a Liquidation by Metals Bank, subject to the requirements of Part 6 of Article 9 of the UCC, and the proceeds thereof (after payment of the reasonable out-of-pocket expenses of Liquidation as provided in Section 2.6(c) (“Net Proceeds”)) will be distributed first to Metals Bank until Payment in Full (as defined in Section 2.6(d)); and the balance, if any, after Payment in Full of the Metals Obligations, will be distributed (i) to the First Lien Agent for application to the First Lien Debt and the Second Lien Debt in accordance with the Existing Intercreditor Agreement or (ii) to the Second Lien Agent if the First Lien Debt has been paid in full.
(b) Metals Collateral in any other form, including Metals Collateral included in Equipment which contains other precious metal, will be Liquidated by Metals Bank, subject to the requirements of Part 6 of Article 9 of the Uniform Commercial Code, and the Net Proceeds thereof will be distributed first to Metals Bank until the Metals Bank receives Payment in Full of the Metals Obligations; and the balance of the Net Proceeds, if any, will be distributed (i) to the First Lien Agent for application to the First Lien Debt and the Second Lien Debt in accordance with the Existing Intercreditor Agreement or (ii) to the Second Lien Agent if the First Lien Debt has been paid in full.
(c) At Metals Bank’s option, Metals Collateral consisting of Platinum in raw material form may be returned to Metals Bank or to a third party for credit to Metals Bank’s account and credited against Borrowers’ Metals Obligations as an ounce-for-ounce credit against outstanding consignment balances until Payment in Full is received by Metals Bank.
(d) For the purposes of this Agreement, in connection with any Liquidation of Metals Collateral or any other enforcement of the Metals Bank’s Liens in the Metals Collateral after an Acceleration/Insolvency Event, Metals Bank shall be deemed to have received “Payment in Full” of the Metals Obligations from the Liquidation of the Metals Collateral or any other enforcement of the Metals Bank’s Liens in the Metals Collateral after an Acceleration/Insolvency Event upon Metals Bank’s receipt of payment (either in cash or by return of Precious Metal pursuant to the Metals Agreement, or by some combination thereof) of Metals Obligations equal to the Metals Obligations Lien Priority Limit.
2.7 Each Agent agrees not to assert and hereby waives any right to demand, request, plead or otherwise assert or claim the benefit of, any marshalling or other similar right that may otherwise be available under applicable law. In addition, notwithstanding each Agent’s junior lien on the Metals Collateral, each Agent agrees that, until Payment in Full is received by Metals Bank: (i) it will not hinder or delay Metals Bank in enforcing its rights and remedies with respect to its senior Lien on the Metals Collateral; (ii) the Metals Collateral may be repossessed or removed by Metals Bank at any time and from time to time, and Metals Bank will have access at any time and from time to time to any real property for such purpose, and (iii) the Metals Collateral is, and will remain, personal property at all times hereafter notwithstanding any provision or language to the contrary in any security agreement between an Agent and the Borrowers; provided, however, that the Agents may exercise secured party remedies in respect to the Metals Collateral, subject to the Lien priority in favor of Metals Bank established hereby, if Metals Bank fails to commence its exercise of secured party remedies in respect to the Metals Collateral for a period (the “Standstill Period”) of one hundred eighty (180) consecutive days after its giving or receipt of an Acceleration Notice, unless such failure is caused by the commencement of an Insolvency Proceeding or other legal constraints imposed on Metals Bank by applicable law; and provided further, however, that:
(a) in any Insolvency Proceeding commenced by or against any Borrower Party, the Agents, First Lien Creditors and/or Second Lien Creditors may file a proof of claim or statement of interest with respect to the First Lien Debt and/or Second Lien Debt;
(b) the Agents, First Lien Creditors and/or Second Lien Creditors shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Agents, First Lien Creditors and/or Second Lien Creditors, including without limitation any claims secured by the Metals Collateral, if any, in each case if not otherwise in contravention of the terms of this Agreement;
(c) the Agents, First Lien Creditors and/or Second Lien Creditors shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Borrower Parties arising under either the United States Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors or applicable non-bankruptcy law, in each case if not otherwise in contravention of the terms of this Agreement;
(d) the Agents, First Lien Creditors and/or Second Lien Creditors shall be entitled to file any proof of claim and other filings and make any arguments and motions in order to preserve or protect its Liens on the Metals Collateral that are, in each case, not otherwise in contravention of the terms of this AgreementSenior Secured Notes, with respect to the First Lien DebtNotes Secured Obligations, Second Lien Debt and/or the Metals Collateral;until satisfaction in full of all such Notes Secured Obligations.
(eA) the AgentsCity of Johnstown, First Lien Creditors and/or Second Lien Creditors may exercise any Pennsylvania, with respect to its Secured Obligations under the EDP Loans, (B) the City of Johnstown, Pennsylvania, with respect to its rights or remedies Secured Obligations under the ECP Loans, (C) the County of Cambria, Pennsylvania, with respect to its Secured Obligations under the CDBG Loans and (D) the City of Johnstown, Pennsylvania and the County of Cambria, Pennsylvania, with respect to their Secured Obligations under the PA 108 Loans, until satisfaction in full of all such Secured Obligations under the EDP Loans, the ECP Loans, the CDBG Loans and the PA 108 Loans.
(ii) with respect to Modernization Equipment: FIRST: The Trustee, for itself and the holders of the Senior Secured Notes, with respect to the Metals Collateral after the termination of the Standstill Period; and
(f) there shall be no more than one (1) Standstill Period in any period of three hundred sixty-five (365) consecutive days.
2.8 Metals Bank acknowledges and agrees that it holds no Lien on any assets of the Borrowers other than the Metals Collateral and Metals Bank agrees that it will not contest the validityNotes Secured Obligations, perfection, priority or enforceability of any such Liens claimed by the Agents in such assets of the Borrowers.
2.9 The Agents hereby acknowledge, confirm and agree that their respective rights and priorities, inter se, in and to all Collateral shall continue to be subject to and governed by the Existing Intercreditor Agreement which shall remain until satisfaction in full force and effect and is hereby ratified and affirmed by the Agentsof all such Notes Secured Obligations.
Appears in 1 contract
Samples: Intercreditor and Subordination Agreement (Rti Capital Corp)
Security Interests Priorities Remedies. 2.1 3.1 Acknowledgment of Liens; Priorities. -----------------------------------
(a) Each Creditor and Collateral Agent hereby acknowledges that the Metals Bank’s consignment interest in the Metals Collateral and the security interests Agent has been granted by Borrowers to Metals Bank in the Metals Collateral shall constitute a first priority secured Lien upon the Metals Collateral to secure for the Metals Obligations; provided, however, that the aggregate amount benefit of the Metals Bank’s Lien upon the Metals Collateral which shall be entitled to priority over the Liens in favor of the First Lien Creditors and the Second Lien Creditors shall not exceed an amount (the “Metals Obligations Lien Priority Limit”) calculated from time to time as the least of: (a) the total amount of the Metals Obligations, (b) the Value of one hundred fifteen percent (115%) of the total quantity of Consigned Precious Metal outstanding under the Metals Agreement as determined in accordance with the Metals Agreement, and (c) the Value of forty-six thousand (46,000) fine xxxx ounces of PlatinumCreditors. Agents hereby consent to such Liens in favor of Metals Bank.
2.2 Notwithstanding 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 any Creditor Representative in any Collateral, and notwithstanding any conflicting terms or conditions which may be contained in any of the Transaction DocumentsAgreements, the Liens upon the Metals Collateral in favor of Collateral Agent for the Metals Bank benefit of Lender have and shall have priority, up to the Metals Obligations Lien Priority Limit, priority over the Liens upon the Metals Collateral in favor of Collateral Agent for the First Lien benefit of Note Creditors and the Second Lien Creditors, or any of them, and such Liens of such First Lien Collateral Agent for the benefit of Note Creditors and Second Lien Creditors on the Collateral are and shall be, in all respects, subject and subordinate to the Liens of Collateral Agent for the Metals Bank benefit of Lender therein up to the Metals Obligations Lien Priority Limitfull extent of the Lender Debt (subject to the limitation on the amount thereof provided for in the definition of such term).
2.3 (b) The Lien priorities provided in Sections 2.1 and 2.2 shall not be altered proceeds of any sale, disposition or otherwise affected by other realization upon all or any amendment, modification, supplement, extension, renewal, restatement or refinancing part of the First Lien DebtCollateral shall be applied in the following order of priorities:
(i) first, to the Second Lien payment in full in immediately available funds of the expenses of the collection and enforcement of the Lender Debt and such sale, disposition or the Metals Obligations, or by any action or inaction which any Creditor may take or fail to take in respect of any other realization of the Collateral., including all expenses, liabilities and advances incurred or made by Collateral Agent or Lender in connection therewith, or any amounts paid to or on behalf of Collateral Agent by Lender in connection therewith;
2.4 Metals Bank shall be solely responsible (ii) second, to the payment in full of all of the Lender Debt (subject to the limitation on the amount thereof provided for perfecting in the definition of such term) in whatever manner and maintaining the perfection of its Liens order Lender chooses in and to each item constituting the Metals Collateral in which it has been granted a Lien. The foregoing provisions of this Agreement (and, as between the First Lien Creditors and the Second Lien Creditors, accordance with the provisions of the Existing Intercreditor AgreementLender Agreements and applicable law (and including amounts to hold as cash collateral for any such Lender Debt which is contingent in such amounts and on such terms as Lender may require pursuant thereto);
(iii) are intended solely to govern the respective Lien priorities as between the Creditors and shall not impose on any Creditor any obligations in respect of the disposition of proceeds of foreclosure on any Collateral which would conflict with prior perfected claims therein in favor of any other person or any order or decree of any court or other governmental authority or any applicable law. Each Creditor Representative agrees that it will not contest the validitythird, perfection, priority or enforceability of the Liens upon the Metals Collateral in favor of the other Creditor Representatives and agrees that as between the Creditors, the terms of this Agreement shall govern even if part or all of the Metals Obligations or the Liens securing payment and performance thereof are avoided, disallowed, set aside or otherwise invalidated in any judicial proceeding or otherwise.
2.5 Except as otherwise provided in this Agreement (including, without limitation, in Section 2.5, and in Section 2.7), (a) Metals Bank shall have the exclusive right to manage, perform and enforce the terms of the Metals Documents with respect to the Metals Obligations, (b) to exercise and enforce all privileges and rights thereunder according to its discretion and the exercise of its business judgment, and (c) subject to the provisions of Section 2.6 hereof, the exclusive right to take or retake control or possession of the Metals Collateral and to hold, prepare Note Trustee for sale, process, sell, lease, dispose of, refine, melt down or liquidate the Metals Collateral until Payment in Full is received by Metals Bank. Until the final payment and satisfaction in full in immediately available funds of all of the Metals Obligations Noteholder Debt in whatever manner and termination order Note Trustee chooses in accordance with the provisions of Metals Bank’s obligations under the Metals Documents Noteholder Agreements and applicable law;
(oriv) fourth, to the payment of any other Lender Debt not paid pursuant to clause (ii) above, if earlierany, in whatever manner and order Lender chooses in accordance with the receipt by Metals Bank provisions of Net Proceeds from Liquidation of Metals Collateral in an amount equal the Lender Agreements and applicable law; and
(v) fifth, to the Metals Obligations Lien Priority Limit), the Agents may not take any action to enforce their respective Liens in the Metals Collateral Debtors or assert any claims or interests therein; provided, however, that the First Lien Agent (or, if the First Lien Debt has been paid in full, the Second Lien Agent) shall be responsible for conducting, such other person as agent for Metals Bank and the other Creditor Representatives, all negotiations or proceedings on behalf of the Creditor Representatives involving any condemnation of the Metals Collateral or any part thereof or involving any insurance that may be available for loss of lawfully entitled thereto.
(c) Notwithstanding any instruction, notice or damage claim to the Metals contrary at any time received by Collateral Agent from any Note Creditor or any part thereof; and provided furtherotherwise, howeverCollateral Agent shall have no obligation, that the First Lien Agent (liability or the Second Lien Agent, if applicable) shall not elect to terminate negotiations, shall not refuse or fail to file a claim, and shall not accept or agree to any settlement of any claim involving condemnation proceeds or insurance proceeds in responsibility with respect to the Metals Collateral (unless such settlement distribution, delivery or compromise results in payment in full remittance of any proceeds of the Metals Obligations Lien Priority Limit), in each case without the prior written consent of Metals Bank, which consent shall not be unreasonably withheld or delayedCollateral to any Noteholder. Any settlement or compromise proceeds of a condemnation or insurance claim Collateral received by Collateral Agent which covers or relates in whole or in part are to Metals Collateral shall include a specific dollar allocation for the Metals Collateral portion of such compromise or settlement. All condemnation and insurance proceeds payable in respect to Metals Collateral shall be paid applied to the First Lien Agent (or, if the First Lien Debt has been paid in full, the Second Lien Agent), as agent for the Creditor Representatives, and such proceeds shall be paid by First Lien Agent (or the Second Lien Agent, if applicable) first to Metals Bank until Metals Bank receives payment in full of all Metals Obligations related to the Platinum included in the Metals Collateral which is the subject of the condemnation or insurance claim (in an amount not to exceed the Metals Obligations Lien Priority Limit), and second the balance will be distributed (i) to the First Lien Agent for application to the First Lien Debt and the Second Lien Noteholder Debt in accordance with the Existing Intercreditor Agreement, or (ii) to the Second Lien Agent if the First Lien Debt has been paid in full. Each of the Agents agrees that if it shall receive any of the Metals Collateral in violation of this Agreement, it shall hold such Metals Collateral in trust for the benefit of the Metals Bank in accordance with this Agreement and, promptly upon discovery or notice of such violation, turn it over to the Metals Bank in accordance with this Agreement.
2.6 Unless the Agents and Metals Bank mutually agree otherwise, any Liquidation of Metals Collateral shall be conducted and applied as follows until Payment in Full is received by Metals Bank:
(a) Metals Collateral in the form of raw metals which terms hereof are the subject of a Liquidation by Metals Bank, subject to the requirements of Part 6 of Article 9 of the UCC, and the proceeds thereof (after payment of the reasonable out-of-pocket expenses of Liquidation as provided in Section 2.6(c) (“Net Proceeds”)) will be distributed first to Metals Bank until Payment in Full (as defined in Section 2.6(d)); and the balance, if any, after Payment in Full of the Metals Obligations, will be distributed (i) to the First Lien Agent for application to the First Lien Debt and the Second Lien Debt in accordance with the Existing Intercreditor Agreement or (ii) to the Second Lien Agent if the First Lien Debt has been paid in full.
(b) Metals Collateral in any other form, including Metals Collateral included in Equipment which contains other precious metal, will be Liquidated by Metals Bank, subject to the requirements of Part 6 of Article 9 of the Uniform Commercial Code, and the Net Proceeds thereof will be distributed first to Metals Bank until the Metals Bank receives Payment in Full of the Metals Obligations; and the balance of the Net Proceeds, if any, will be distributed (i) to the First Lien Agent for application to the First Lien Debt and the Second Lien Debt in accordance with the Existing Intercreditor Agreement or (ii) to the Second Lien Agent if the First Lien Debt has been paid in full.
(c) At Metals Bank’s option, Metals Collateral consisting of Platinum in raw material form may be returned to Metals Bank or to a third party for credit to Metals Bank’s account and credited against Borrowers’ Metals Obligations as an ounce-for-ounce credit against outstanding consignment balances until Payment in Full is received by Metals Bank.
(d) For the purposes of this Agreement, in connection with any Liquidation of Metals Collateral or any other enforcement of the Metals Bank’s Liens in the Metals Collateral after an Acceleration/Insolvency Event, Metals Bank shall be deemed to have received “Payment in Full” of the Metals Obligations from the Liquidation of the Metals Collateral or any other enforcement of the Metals Bank’s Liens in the Metals Collateral after an Acceleration/Insolvency Event upon Metals Bank’s receipt of payment (either in cash or by return of Precious Metal pursuant to the Metals Agreement, or by some combination thereof) of Metals Obligations equal to the Metals Obligations Lien Priority Limit.
2.7 Each Agent agrees not to assert and hereby waives any right to demand, request, plead or otherwise assert or claim the benefit of, any marshalling or other similar right that may otherwise be available under applicable law. In addition, notwithstanding each Agent’s junior lien on the Metals Collateral, each Agent agrees that, until Payment in Full is received by Metals Bank: (i) it will not hinder or delay Metals Bank in enforcing its rights and remedies with respect to its senior Lien on the Metals Collateral; (ii) the Metals Collateral may be repossessed or removed by Metals Bank at any time and from time to time, and Metals Bank will have access at any time and from time to time to any real property for such purpose, and (iii) the Metals Collateral is, and will remain, personal property at all times hereafter notwithstanding any provision or language to the contrary in any security agreement between an Agent and the Borrowers; provided, however, that the Agents may exercise secured party remedies in respect to the Metals Collateral, subject to the Lien priority in favor of Metals Bank established hereby, if Metals Bank fails to commence its exercise of secured party remedies in respect to the Metals Collateral for a period (the “Standstill Period”) of one hundred eighty (180) consecutive days after its giving or receipt of an Acceleration Notice, unless such failure is caused by the commencement of an Insolvency Proceeding or other legal constraints imposed on Metals Bank by applicable law; and provided further, however, that:
(a) in any Insolvency Proceeding commenced by or against any Borrower Party, the Agents, First Lien Creditors and/or Second Lien Creditors may file a proof of claim or statement of interest with respect to the First Lien Debt and/or Second Lien Debt;
(b) the Agents, First Lien Creditors and/or Second Lien Creditors shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Agents, First Lien Creditors and/or Second Lien Creditors, including without limitation any claims secured by the Metals Collateral, if any, in each case if not otherwise in contravention of the terms of this Agreement;
(c) the Agents, First Lien Creditors and/or Second Lien Creditors shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Borrower Parties arising under either the United States Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors or applicable non-bankruptcy law, in each case if not otherwise in contravention of the terms of this Agreement;
(d) the Agents, First Lien Creditors and/or Second Lien Creditors shall be entitled to file any proof of claim and other filings and make any arguments and motions in order to preserve or protect its Liens on the Metals Collateral that are, in each case, not otherwise in contravention of the terms of this Agreement, with respect to the First Lien Debt, Second Lien Debt and/or the Metals Collateral;
(e) the Agents, First Lien Creditors and/or Second Lien Creditors may exercise any of its rights or remedies with respect to the Metals Collateral after the termination of the Standstill Period; and
(f) there shall be no more than one (1) Standstill Period in any period of three hundred sixty-five (365) consecutive days.
2.8 Metals Bank acknowledges and agrees that it holds no Lien on any assets of the Borrowers other than the Metals Collateral and Metals Bank agrees that it will not contest the validity, perfection, priority or enforceability of any such Liens claimed by the Agents in such assets of the Borrowers.
2.9 The Agents hereby acknowledge, confirm and agree that their respective rights and priorities, inter se, in and to all Collateral shall continue only required to be subject remitted by Collateral Agent to and governed by the Existing Intercreditor Agreement which shall remain in full force and effect and is hereby ratified and affirmed by the AgentsNote Trustee.
Appears in 1 contract
Samples: Intercreditor Agreement (RBX Corp)
Security Interests Priorities Remedies. 2.1 Each Agent hereby acknowledges that Trustee acting for its benefit and for the Metals Bank’s consignment interest in benefit and on behalf of the Metals Noteholders has been granted Liens upon all of the Revolving Loan Collateral and the security interests granted by Borrowers Senior Note Collateral pursuant to Metals Bank in the Metals Collateral shall constitute a first priority secured Lien upon the Metals Collateral Senior Note Agreements to secure the Metals Obligations; provided, however, Senior Note Debt. Trustee acknowledges that Agent acting for its benefit and for the aggregate amount benefit and on behalf of the Metals Bank’s Lien Lenders has been granted Liens upon the Metals Revolving Loan Collateral which shall be entitled to priority over the Liens in favor of the First Lien Creditors and the Second Lien Creditors shall not exceed an amount (Senior Note Collateral pursuant to the “Metals Obligations Lien Priority Limit”) calculated from time Revolving Agreements to time as secure the least of: (a) the total amount of the Metals Obligations, (b) the Value of one hundred fifteen percent (115%) of the total quantity of Consigned Precious Metal outstanding under the Metals Agreement as determined in accordance with the Metals Agreement, and (c) the Value of forty-six thousand (46,000) fine xxxx ounces of Platinum. Agents hereby consent to such Liens in favor of Metals BankRevolving Loan Debt.
2.2 Notwithstanding 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 any each Creditor Representative in any Collateral, and notwithstanding any conflicting terms or conditions which may be contained in any of the Transaction DocumentsAgreements or under applicable law:
(a) the following Lien priorities shall strictly apply in defining the respective Lien priorities of each Creditor in the Revolving Loan Collateral:
(i) first, the Liens upon the Metals Revolving Loan Collateral in favor of Agent to the full extent of the Metals Bank have and shall have priorityRevolving Loan Debt; and
(ii) second, up to the Metals Obligations Lien Priority Limit, over the Liens upon the Metals Revolving Loan Collateral in favor of Trustee to the full extent of the First Senior Note Debt.
(b) the following Lien Creditors and priorities shall strictly apply in defining the Second respective Lien Creditorspriorities of each Creditor in the Senior Note Collateral:
(i) first, or any the Liens upon the Senior Note Collateral of them, and such Liens of such First Lien Creditors and Second Lien Creditors are and shall be, in all respects, subject and subordinate Trustee to the Liens full extent of the Metals Bank therein up Senior Note Debt; and
(ii) second, the Liens upon the Senior Note Collateral of Agent to the Metals Obligations Lien Priority Limitfull extent of the Revolving Loan Debt.
2.3 The Lien lien priorities provided in Sections 2.1 and Section 2.2 hereof shall not be altered or otherwise affected by (a) any amendment, modification, supplement, extension, renewal, restatement restatement, replacement or refinancing of the First Lien Revolving Agreements, the Revolving Loan Debt, the Second Lien Senior Note Debt or the Metals ObligationsSenior Note Agreements, or by (b) any action or inaction which any Creditor of Creditors may take or fail to take in respect of the Collateral, (c) the invalidity, irregularity or unenforceability of all or any part of the CollateralRevolving Agreements, Senior Note Agreements, Revolving Loan Debt or Senior Note Debt, or (d) any impairment, modification, change, exchange, release or subordination of, or stay of actions or lien proceedings against, Debtors or Obligors, or their respective property or estate in bankruptcy resulting from any bankruptcy, arrangement, readjustment, composition, liquidation, rehabilitation or similar proceeding involving or affecting any Debtor or Obligor. Each Creditor agrees that it shall execute and deliver any instrument or agreement and take such actions reasonably requested by the other Creditor to confirm and give effect to the relative priorities and other agreements set forth herein.
2.4 Metals Bank Each Creditor shall be solely responsible for perfecting and maintaining the perfection of its Liens Lien in and to each item constituting the Metals Collateral in which it such Creditor has been granted a Lien, subject to the terms of Section 3.6 hereof. The foregoing provisions of this Intercreditor Agreement (and, as between the First Lien Creditors and the Second Lien Creditors, the provisions of the Existing Intercreditor Agreement) are intended solely to govern the respective Lien priorities as between the Creditors and shall not impose on any Creditor any obligations in respect of the disposition of proceeds of foreclosure on any Collateral which would conflict with prior perfected claims therein in favor of any other person or any order or decree of any court or other governmental authority or any applicable lawlaw in favor of any other person. Each Creditor Representative agrees that it will not contest the validity, perfection, priority or enforceability of the Liens upon the Metals Collateral in favor of the other Creditor Representatives (subject, as to priority, to the terms of Section 2.2 hereof) and agrees that as between the CreditorsAgent and Trustee, the terms of this Intercreditor Agreement shall govern even if part or all of the Metals Obligations Revolving Loan Debt or the Senior Note Debt or the Liens securing payment and performance thereof are avoided, disallowed, set aside or otherwise invalidated in any judicial proceeding or otherwise.
2.5 Except In the event that any Creditor shall, in the exercise of its rights under its Agreements, receive possession or control of any books and records of any Debtor or Obligor which contain information identifying or pertaining to any of the property of any Debtor or Obligor in which the other Creditor has been granted a Lien, it shall notify the other Creditor in writing that it has received such books and records and shall, as otherwise provided promptly as practicable thereafter, make available to the other Creditor such books and records for inspection and duplication.
2.6 Subject to the terms and conditions set forth in this Agreement (including, without limitation, in Section 2.5, and in Section 2.7)Intercreditor Agreement, (a) Metals Bank Agent shall have the exclusive right to manage, perform and enforce the terms of the Metals Documents Revolving Agreements with respect to the Metals ObligationsRevolving Loan Collateral, (b) to exercise and enforce all privileges and rights thereunder according to its discretion and the exercise of its business judgment, and (c) subject to the provisions of Section 2.6 hereofincluding, without limitation, the exclusive right to take or retake control or possession of the Metals Revolving Loan Collateral and to hold, prepare for sale, process, sell, lease, dispose of, refineor liquidate such Revolving Loan Collateral, melt down and (b) Trustee shall have the exclusive right to manage, perform and enforce the terms of the Senior Note Agreements with respect to the Senior Note Collateral, to exercise and enforce all privileges and rights thereunder according to its discretion and the exercise of its business judgment, including, without limitation, the exclusive right to take or retake control or possession of the Senior Note Collateral and to hold, prepare for sale, process, sell, lease, dispose of, or liquidate the Metals Collateral until Payment Senior Note Collateral. Nothing in Full is received by Metals Bank. Until the final payment and satisfaction in full of the Metals Obligations and termination of Metals Bank’s obligations under the Metals Documents (or, if earlier, the receipt by Metals Bank of Net Proceeds from Liquidation of Metals Collateral in an amount equal this Section 2.6 shall confer upon any Creditor any rights to the Metals Obligations Lien Priority Limit), the Agents may not take exercise any action to enforce their respective Liens in the Metals Collateral or assert any claims or interests therein; provided, however, that the First Lien Agent (or, if the First Lien Debt has been paid in full, the Second Lien Agent) shall be responsible for conducting, as agent for Metals Bank and the other Creditor Representatives, all negotiations or proceedings on behalf of the Creditor Representatives involving any condemnation of the Metals Collateral or any part thereof or involving any insurance that may be available for loss of or damage to the Metals Collateral or any part thereof; and provided further, however, that the First Lien Agent (or the Second Lien Agent, if applicable) shall not elect to terminate negotiations, shall not refuse or fail to file a claim, and shall not accept or agree to any settlement of any claim involving condemnation proceeds or insurance proceeds in remedies with respect to the Metals Collateral (unless such settlement or compromise results in payment in full contravention of the Metals Obligations Lien Priority Limit), in each case without the prior written consent of Metals Bank, which consent shall not be unreasonably withheld or delayed. Any settlement or compromise of a condemnation or insurance claim which covers or relates in whole or in part to Metals Collateral shall include a specific dollar allocation for the Metals Collateral portion Agreements of such compromise Creditor and applicable laws. If Agent or settlement. All condemnation and insurance any Lender receives the proceeds payable in of any Senior Note Collateral as a result of the exercise of remedies with respect to Metals such Senior Note Collateral shall be paid at any time prior to the First Lien Agent (or, if the First Lien Debt has been paid in full, the Second Lien Agent), as agent for the Creditor Representatives, and such proceeds shall be paid by First Lien Agent (or the Second Lien Agent, if applicable) first to Metals Bank until Metals Bank receives payment in full of all Metals Obligations related Senior Note Debt, then Agent or such Lender shall (unless otherwise provided by law) promptly notify Trustee thereof (to the Platinum included in extent Agent or such Lender has actual knowledge that such proceeds constitute the Metals Collateral which is the subject proceeds of the condemnation or insurance claim (in an amount not to exceed the Metals Obligations Lien Priority LimitSenior Note Collateral), and second hold the balance will be distributed (i) to the First Lien Agent for application to the First Lien Debt and the Second Lien Debt in accordance with the Existing Intercreditor Agreement, or (ii) to the Second Lien Agent if the First Lien Debt has been paid in full. Each of the Agents agrees that if it shall receive any of the Metals Collateral in violation of this Agreement, it shall hold such Metals Collateral same in trust for the benefit of Noteholders and promptly distribute such proceeds to Trustee; provided, that, unless Agent or such Lender has actual knowledge that such proceeds constitute the Metals Bank proceeds of Senior Note Collateral or Trustee shall notify Agent in accordance with this Agreement and, promptly upon discovery or notice of such violation, turn it over to the Metals Bank in accordance with this Agreement.
2.6 Unless the Agents and Metals Bank mutually agree otherwise, writing that any Liquidation of Metals Collateral shall be conducted and applied as follows until Payment in Full is amounts received by Metals Bank:
(a) Metals Agent or Lenders represent Senior Note Collateral in the form of raw metals which are the subject of a Liquidation by Metals Bank, subject to the requirements of Part 6 of Article 9 of the UCC, and or the proceeds thereof within ten (after payment 10) business days of the reasonable out-of-pocket expenses of Liquidation as provided in Section 2.6(c) (“Net Proceeds”)) will receipt by Agent or Lenders thereof, such amounts shall be distributed first to Metals Bank until Payment in Full (as defined in Section 2.6(d)); and the balance, if any, after Payment in Full of the Metals Obligations, will be distributed (i) to the First Lien retained by Agent for application to the First Revolving Loan Debt. If Trustee or any Noteholder receives the proceeds of any Revolving Loan Collateral as a result of the exercise of remedies with respect to such Revolving Loan Collateral at any time prior to the payment in full of all Revolving Loan Debt, then Trustee or such Noteholder shall (unless otherwise provided by law) promptly notify Agent thereof (to the extent Trustee or such Noteholder has actual knowledge that such proceeds constitute the proceeds of Revolving Loan Collateral), hold the same in trust for the benefit of Lenders and promptly distribute such proceeds to Agent; provided, that, unless Trustee or such Noteholder has actual knowledge that such proceeds constitute the proceeds of Revolving Loan Collateral or Agent shall notify Trustee in writing that any amounts received by Trustee or Noteholders represent Revolving Loan Collateral or the proceeds thereof within ten (10) business days of the receipt by Trustee or Noteholders thereof, such amounts shall be retained by Trustee for application to the Senior Note Debt.
2.7 Notwithstanding anything to the contrary contained in any of the Agreements, only the Creditor with the senior Lien Debt in any Collateral shall have the right to restrict or permit, or approve or disapprove, the sale, transfer or other disposition of such Collateral. The Creditor with the junior Lien on any Collateral shall: (a) promptly upon the written request of the Creditor with a senior Lien thereon, release or otherwise terminate its Liens on such Collateral, to the extent such Collateral is sold or otherwise disposed of either by such Creditor with the senior Lien or its agents, or any Debtor or Obligor with the consent of such senior Creditor and will promptly deliver such other release documents as the Second Creditor with the senior Lien Debt thereon may reasonably require in connection therewith and (b) shall be deemed to have consented under its Agreements to such sale or other disposition. Any such sale or other disposition of the Collateral by any Creditor or its agent in connection with the exercise of its rights and remedies under the Agreements of such Creditor shall be conducted in accordance with the Existing Intercreditor Agreement or (ii) to the Second Lien Agent if the First Lien Debt has been paid in full.
(b) Metals Collateral in any other formapplicable laws, including Metals Collateral included in Equipment which contains other precious metal, will be Liquidated by Metals Bank, subject to the requirements of Part 6 of Article 9 of the Uniform Commercial Code, and Code as in effect in the Net Proceeds thereof will be distributed first to Metals Bank until the Metals Bank receives Payment in Full of the Metals Obligations; and the balance of the Net Proceeds, if any, will be distributed (i) to the First Lien Agent for application to the First Lien Debt and the Second Lien Debt in accordance with the Existing Intercreditor Agreement or (ii) to the Second Lien Agent if the First Lien Debt has been paid in fullapplicable jurisdiction.
(c) At Metals Bank’s option2.8 Except as otherwise specifically provided in Section 2.9 hereof, Metals Collateral consisting of Platinum in raw material form may be returned to Metals Bank or to the Creditor with a third party for credit to Metals Bank’s account and credited against Borrowers’ Metals Obligations as an ounce-for-ounce credit against outstanding consignment balances until Payment in Full is received by Metals Bank.
(d) For the purposes of this Agreement, in connection with any Liquidation of Metals Collateral or any other enforcement of the Metals Bank’s Liens in the Metals Collateral after an Acceleration/Insolvency Event, Metals Bank shall be deemed to have received “Payment in Full” of the Metals Obligations from the Liquidation of the Metals Collateral or any other enforcement of the Metals Bank’s Liens in the Metals Collateral after an Acceleration/Insolvency Event upon Metals Bank’s receipt of payment (either in cash or by return of Precious Metal pursuant to the Metals Agreement, or by some combination thereof) of Metals Obligations equal to the Metals Obligations Lien Priority Limit.
2.7 Each Agent agrees not to assert and hereby waives any right to demand, request, plead or otherwise assert or claim the benefit of, any marshalling or other similar right that may otherwise be available under applicable law. In addition, notwithstanding each Agent’s junior lien on the Metals Collateral, each Agent agrees that, until Payment in Full is received by Metals Bank: (i) it will not hinder or delay Metals Bank in enforcing its rights and remedies with respect to its senior Lien on the Metals Collateral; (ii) the Metals any Collateral may be repossessed will not, directly or removed by Metals Bank at any time and from time to timeindirectly, and Metals Bank will have access at any time and from time to time to any real property for such purpose, and (iii) the Metals Collateral is, and will remain, personal property at all times hereafter notwithstanding any provision or language to the contrary in any security agreement between an Agent and the Borrowers; provided, however, that the Agents may exercise secured party remedies in respect to the Metals Collateral, subject to the Lien priority in favor of Metals Bank established hereby, if Metals Bank fails to commence its exercise of secured party remedies in respect to the Metals Collateral for a period (the “Standstill Period”) of one hundred eighty (180) consecutive days after its giving or receipt of an Acceleration Notice, unless such failure is caused by the commencement of an Insolvency Proceeding or other legal constraints imposed on Metals Bank by applicable law; and provided further, however, that:
(a) in any Insolvency Proceeding commenced by or against any Borrower Party, the Agents, First Lien Creditors and/or Second Lien Creditors may file a proof of claim or statement of interest with respect to the First Lien Debt and/or Second Lien Debt;
(b) the Agents, First Lien Creditors and/or Second Lien Creditors shall be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any person objecting to or otherwise seeking the disallowance of the claims of the Agents, First Lien Creditors and/or Second Lien Creditors, including without limitation any claims secured by the Metals Collateral, if any, in each case if not otherwise in contravention of the terms of this Agreement;
(c) the Agents, First Lien Creditors and/or Second Lien Creditors shall be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Borrower Parties arising under either the United States Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors or applicable non-bankruptcy law, in each case if not otherwise in contravention of the terms of this Agreement;
(d) the Agents, First Lien Creditors and/or Second Lien Creditors shall be entitled to file any proof of claim and other filings and make any arguments and motions in order to preserve or protect its Liens on the Metals Collateral that are, in each case, not otherwise in contravention of the terms of this Agreement, with respect to the First Lien Debt, Second Lien Debt and/or the Metals Collateral;
(e) the Agents, First Lien Creditors and/or Second Lien Creditors may exercise any of its rights or remedies upon a default or event of default by any Debtor or Obligor under its Agreements against such Collateral (including, without limitation, by way of setoff or recoupment), or (b) seek to foreclose or realize upon (judicially or non-judicially) its junior Lien on such Collateral or assert any claims or interest therein (including, without limitation, by setoff or notification of account debtors), or (c) take any other action that would interfere in any manner with the rights of the Creditor with the senior Lien in such Collateral; provided, that, (i) the provisions of this Section 2.8 which restrict the conduct of Trustee shall cease to apply when Agent and Lenders have no obligation to provide financial accommodations to any Debtor or Obligor and all of the Revolving Loan Debt (other than unasserted contingent Obligations) has been satisfied in full in cash (and including the cash collateralization of all outstanding letters of credit issued pursuant to the Revolving Loan Agreement in an amount equal to 105% of the aggregate undrawn face amount of such letters of credit) and (ii) the provisions of this Section 2.8 which restrict the conduct of Agent shall cease to apply when all of the Senior Note Debt (other than unasserted contingent Obligations) has been satisfied in full in cash.
2.9 The foregoing provisions of Section 2.8 shall not in any way limit or impair the right of any Creditor to: (a) bid for and purchase any Collateral at any private or judicial foreclosure upon such Collateral initiated by the Creditor with the senior Lien thereon, or (b) participate in any administrative, legal or equitable action or proceeding against any Debtor or Obligor seeking any reorganization, liquidation, bankruptcy or any other action involving the readjustment of all or any part of the Revolving Loan Debt or the Senior Note Debt, or other similar relief under the U.S. Bankruptcy Code, or (c) send such notices of the existence of, or any evidence or confirmation of, the Revolving Loan Debt or Senior Note Debt, as the case may be, owing to such Creditor under the Agreements of such Creditor or the Liens of such Creditor in the Collateral to any court or governmental agency, or file or record any such notice or evidence to the extent necessary to prove or preserve the Liens of such Creditor in the Collateral.
(a) In the event that Trustee shall acquire control or possession of any of the Senior Note Collateral consisting of Real Property, Equipment and/or Intellectual Property or shall, through the exercise of remedies under the Senior Note Agreements or otherwise, sell any of the Senior Note Collateral consisting of Real Property, Equipment and/or Intellectual Property to any third party (a “Third Party Purchaser”), Trustee shall permit Agent (or require as a condition of such sale to the Third Party Purchaser that the Third Party Purchaser agree to permit Agent), at its option, to (i) enter any or all of the Real Property under such control or possession (or sold to a Third Party Purchaser) during normal business hours in order to inspect, remove or take any action with respect to the Metals Revolving Loan Collateral after or to enforce Agent’s rights with respect thereto, including, but not limited to, the termination examination and removal of Revolving Loan Collateral and the examination and duplication of the Standstill Periodbooks and records of Debtors and Obligors related to the Revolving Loan Collateral or to otherwise handle, deal with or dispose of any Revolving Loan Collateral, such right to include, without limiting the generality of the foregoing, the right to conduct one or more public or private sales or auctions thereon; and(ii) use any of the Equipment under such control or possession (or sold to a Third Party Purchaser) consisting of computers or other data processing equipment related to the storage or processing of records, documents or files pertaining to the Revolving Loan Collateral and use any other Equipment under such control or possession (or sold to a Third Party Purchaser) to handle, deal with or dispose of any Revolving Loan Collateral pursuant to Agent’s rights as set forth in the Revolving Agreements, the Uniform Commercial Code of any applicable jurisdiction and other applicable law; and (iii) use any of the Intellectual Property under such control or possession (or sold to a Third Party Purchaser) that is marked or stamped on any Revolving Loan Collateral or otherwise necessary to produce, assemble, collect, deal with or realize on any Revolving Loan Collateral. Agent shall indemnify Trustee and Noteholders from and against all damage to any of the Senior Note Collateral caused by any act of Agent during the time that Agent uses any of the Senior Note Collateral pursuant to this Section 2.10(a).
(fb) there For each day that Agent uses the Real Property or Equipment pursuant to the rights granted in Section 2.10(a) above for the purpose of processing raw materials and work-in-process into finished goods inventory, Agent shall be no more than one reimburse Noteholders for the Incremental Costs (1as defined below) Standstill Period incurred by Noteholders with respect to utility and similar charges and any increased insurance costs which Noteholders are required to pay as a result of such uses by Agent. As used herein, “Incremental Costs” shall mean those costs which are directly attributable to the Agent’s use of Real Property and Equipment solely for the purposes described in any period of three hundred sixty-five (365this Section 2.10(b) consecutive days.
2.8 Metals Bank acknowledges and agrees that it holds no Lien on any assets in excess of the Borrowers other than costs that would have been incurred if Agent had not so used the Metals Collateral Real Property and Metals Bank agrees that it will not contest the validity, perfection, priority or enforceability of any such Liens claimed by the Agents in such assets of the BorrowersEquipment.
2.9 The Agents hereby acknowledge, confirm and agree that their respective rights and priorities, inter se, in and to all Collateral shall continue to be subject to and governed by the Existing Intercreditor Agreement which shall remain in full force and effect and is hereby ratified and affirmed by the Agents.
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Samples: Intercreditor Agreement (Listerhill Total Maintenance Center LLC)
