Junior Priority Debt. The Junior Priority Agent for, and each Junior Priority Secured Party with respect to, the Junior Priority Secured Obligations shall be bound by the following terms and conditions: (a) Any and all Liens now existing or hereafter created or arising in favor of any such Junior Priority Secured Party securing or purporting to secure the Junior Priority Secured Obligations, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, are expressly junior in priority, operation and effect to any and all Liens now existing or hereafter created or arising in favor of the First Priority Secured Parties securing or purporting to secure the First Priority Secured Obligations, notwithstanding (i) anything to the contrary contained in any agreement or filing to which any such Junior Priority Secured Party may now or hereafter be a party, and regardless of the time, order or method of grant, attachment, recording or perfection of any financing statements or other security interests, assignments, pledges, deeds, mortgages and other liens, charges or encumbrances or any defect or deficiency or alleged defect or deficiency in any of the foregoing, (ii) any provision of the Uniform Commercial Code or any applicable law or any agreement with respect to the First Priority Secured Obligations or the Junior Priority Secured Obligations or any other circumstance whatsoever and (iii) the fact that any such Liens in favor of any First Priority Secured Party securing or purporting to secure any of the First Priority Secured Obligations are (x) subordinated to any Lien securing any obligation of any Grantor other than the Junior Priority Secured Obligations or (y) otherwise subordinated, voided, avoided, invalidated or lapsed; (b) No such Junior Priority Secured Party shall object to or contest, or support any other Person in contesting or objecting to, in any proceeding (including without limitation, any Insolvency Proceeding), the validity, extent, perfection, priority or enforceability of any security interest in the Collateral granted to, or the allowability of any claims asserted by, any First Priority Secured Party. Notwithstanding any failure by any First Priority Secured Party to perfect its security interests in the Collateral or any avoidance, invalidation or subordination by any third party or court of competent jurisdiction of the security interests in the Collateral granted to the First Priority Secured Parties, the priority and rights as between the First Priority Secured Parties and the Junior Priority Secured Parties with respect to the Collateral shall be as set forth herein; (c) No such Junior Priority Secured Party shall, prior to the payment and performance in full of the First Priority Secured Obligations, assert, demand, request, plead or otherwise claim the benefit of, any marshalling, appraisal, valuation and any other right that may otherwise be available under any applicable requirement of law with respect to any Collateral to a creditor in its capacity as beneficiary of a junior lien on such Collateral; (d) No such Junior Priority Secured Party shall, in or in connection with any Insolvency Proceeding, file any pleadings or motions, take any position at any hearing or proceeding of any nature, or otherwise take any action whatsoever, in each case in respect of any of the Collateral, including, without limitation, with respect to the determination of any Liens or claims held by any First Priority Secured Party or the value of any claims of such parties under Section 506(a) of the Bankruptcy Code or otherwise; provided that any such Junior Priority Secured Party may file a proof of claim in an Insolvency Proceeding, subject to the limitations contained in this Collateral Trust Agreement and only if consistent with the terms and the limitations on such Junior Priority Secured Party imposed hereby; (e) If any Grantor becomes the subject of any Insolvency Proceeding, and if the First Priority Agent desires to consent (or not object) to the use of cash collateral under the Bankruptcy Code or to provide any DIP Financing to any Grantor or to consent (or not object) to the provision of any DIP Financing to any Grantor, whether or not proceeds of any such DIP Financing are being used to Refinance all or any portion of the First Priority Secured Obligations, then each such Junior Priority Secured Party (a) will be deemed to have consented to, and will raise no objection to, nor support any other Person objecting to, the use of such cash collateral or such DIP Financing, (b) will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in subsection 8.1(g) below and (c) will subordinate (and will be deemed hereunder to have subordinated) its Junior Priority Secured Obligations (i) to such DIP Financing on the same terms as the First Priority Secured Obligations are subordinated thereto (and such subordination will not alter in any manner the terms of this Collateral Trust Agreement) or, to the extent the proceeds of such DIP Financing refinance all or any portion of the First Priority Secured Obligations, on the same terms as the Junior Priority Secured Obligations are subordinated to the First Priority Secured Obligations pursuant to this Collateral Trust Agreement, (ii) to any adequate protection provided to the First Priority Secured Parties and (iii) to any “carve-out” agreed to by the First Priority Agent, and (d) agrees that notice received two calendar days prior to the entry of an order approving such usage of cash collateral or approving such financing shall be adequate notice; (f) No such Junior Priority Secured Party will seek relief from the automatic stay or from any other stay in any Insolvency Proceeding or take any action in derogation thereof, in each case in respect of any Collateral, without the prior written consent of the Majority First Priority Secured Parties (to the extent there are any First Priority Secured Parties); (g) No such Junior Priority Secured Party shall object to, contest, or support any other Person objecting to or contesting, (i) any request by any First Priority Secured Party for adequate protection or any adequate protection provided to any First Priority Secured Party or (ii) any objection by any First Priority Secured Party to any motion, relief, action or proceeding based on a claim of a lack of adequate protection or (iii) the allowance and/or payment of interest, fees, expenses or other amounts to any First Priority Secured Party under Section 506(b) or 506(c) of the Bankruptcy Code or otherwise. Notwithstanding anything contained in this subsection 8.1 (but subject to all other provisions of this Collateral Trust Agreement), in any Insolvency Proceeding, (x) if the First Priority Secured Parties (or any subset thereof) are granted adequate protection consisting of a Lien on additional or replacement collateral and/or superpriority claims in connection with any DIP Financing or use of cash collateral, and such First Priority Secured Parties do not object to the adequate protection being provided to them, then in connection with any such DIP Financing or use of cash collateral such Junior Priority Secured Parties may seek or accept adequate protection consisting solely of a Lien on the same additional or replacement collateral, subordinated to the Liens securing and providing adequate protection for the First Priority Secured Obligations and such DIP Financing on the same basis as the other Liens securing the Junior Priority Secured Obligations are so subordinated to the First Priority Secured Obligations under this Collateral Trust Agreement and superpriority claims junior in all respects to the superpriority claims granted to the First Priority Secured Parties and (y) in the event any such Junior Priority Secured Party seeks or accepts adequate protection in accordance with clause (x) above and such adequate protection is granted in the form of a Lien on additional collateral, then such Junior Priority Secured Party agrees that the First Priority Secured Parties shall also be granted a senior Lien on such additional collateral as security and adequate protection for the First Priority Secured Obligations and any such DIP Financing and that any Lien on such additional collateral securing or providing adequate protection for the Junior Priority Secured Obligations shall be subordinated to the Liens on such collateral securing the First Priority Secured Obligations and any such DIP Financing (and all Obligations relating thereto) and any other Liens granted to the First Priority Secured Parties as adequate protection, with such subordination to be on the same terms that the other Liens securing the Junior Priority Secured Obligations are subordinated to the Liens securing such First Priority Secured Obligations under this Collateral Trust Agreement. The Junior Priority Secured Parties agree that except as expressly set forth in this subsection 8.1 none of them shall seek or accept adequate protection without the prior written consent of the Majority First Priority Secured Parties (to the extent there are any First Priority Secured Parties); (h) If any First Priority Secured Party is required in any Insolvency Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of any Grantor, because such amount was avoided or ordered to be paid or disgorged for any reason, including without limitation because it was found to be a fraudulent or preferential transfer, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of set-off or otherwise, then the First Priority Secured Obligations shall be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the payment and performance in full of the First Priority Secured Obligations shall be deemed not to have occurred. If this Collateral Trust Agreement shall have been terminated prior to such Recovery, this Collateral Trust Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. The Junior Priority Secured Parties agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Collateral Trust Agreement, whether by preference, fraudulent transfer or otherwise, it being understood and agreed that the benefits of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Collateral Trust Agreement; (i) No such Junior Priority Secured Party shall, in an Insolvency Proceeding or otherwise, oppose any sale or disposition of any assets of any Grantor that is supported by the First Priority Agent, and each such Junior Priority Secured Party will be deemed to have consented under Section 363 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law (and otherwise) to any sale supported by the First Priority Agent and to have released its Liens on such assets; provided that the net cash proceeds of such sale shall have been applied to the Secured Obligations in accordance with subsection 3.4 or the parties’ respective Liens shall have been attached to such net cash proceeds in accordance with the Lien priorities set forth in this Collateral Trust Agreement; (j) Each such Junior Priority Secured Party acknowledges and agrees that because of, among other things, their differing rights in the Collateral, the Junior Priority Secured Obligations are fundamentally different from the First Priority Secured Obligations and must be separately classified in any plan of reorganization or similar dispositive restructuring plan proposed, confirmed or adopted in an Insolvency Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims of the First Priority Secured Parties and the Junior Priority Secured Parties in respect of the Collateral constitute only one secured claim (rather than separate classes of senior and junior secured claims), then the Junior Priority Secured Parties hereby acknowledge and agree that all distributions shall be made as if there were separate classes of senior and junior secured claims against the Grantors in respect of the Collateral (with the effect being that, to the extent that the aggregate value of the Collateral is sufficient (for this purpose ignoring all claims held by the Junior Priority Secured Parties), the First Priority Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of Post-Petition Interest before any distribution is made in respect of the claims held by the Junior Priority Secured Parties, with the Junior Priority Secured Parties hereby acknowledging and agreeing to turn over to the First Priority Secured Parties amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of the Junior Priority Secured Parties; (k) No Junior Priority Secured Party (whether in the capacity of a secured creditor or an unsecured creditor) shall propose, vote in favor of, or otherwise directly or indirectly support any plan of reorganization or similar dispositive restructuring plan that violates or is otherwise inconsistent with the priorities set forth in Section 3.4 or the other provisions of this Collateral Trust Agreement. To the extent that a Junior Priority Secured Party has not voted its claim with respect to the Junior Priority Secured Obligations in any Insolvency Proceeding on any proposed plan of reorganization or similar dispositive restructuring plan prior to the date which is 10 days before the expiration of the time to vote such claim, the Collateral Trustee may vote such claim on behalf of such Junior Priority Secured Party at the direction of the Controlling Party; (l) No such Junior Priority Secured Party shall oppose or seek to challenge any claim by any First Priority Secured Party for allowance in any Insolvency Proceeding of Post-Petition Interest, fees or expenses in respect of any First Priority Secured Obligation. No First Priority Secured Party shall oppose or seek to challenge any claim by any Junior Priority Secured Party for the accrual (but not payment) in any Insolvency Proceeding of Post-Petition Interest (after taking into account the First Priority Secured Obligations); (m) No such Junior Priority Secured Party shall (i) object to any motion by any First Priority Secured Party seeking relief from the automatic stay as provided in Section 362 of the Bankruptcy Code or any similar provision of any applicable Bankruptcy Law or any other stay in respect of the Collateral, (ii) object to, oppose, support any objection, or take any other action to impede, the right of any First Priority Secured Party to make an election under Section 1111(b)(2) of the Bankruptcy Code or any similar provision of any applicable Bankruptcy Law, or (iii) assert or enforce any claim under Section 506(c) of the Bankruptcy Code or any similar provision of any applicable Bankruptcy Law senior to or on a parity with the Liens securing the First Priority Secured Obligations for costs or expenses of preserving or disposing of any Collateral; (n) Nothing contained herein shall prohibit or in any way limit any First Priority Secured Party from objecting in any Insolvency Proceeding or otherwise to any action taken by any Junior Priority Secured Party, including the seeking by any Junior Priority Secured Party of adequate protection (except as provided in subsection 8.1(g)) or the asserting by any Junior Priority Secured Party of any of its rights and remedies under any Junior Priority Debt Document in respect of Junior Priority Secured Obligations, the Trust Security Documents or otherwise; (o) This Collateral Trust Agreement is a “subordination agreement” und
Appears in 1 contract
Sources: Collateral Trust and Intercreditor Agreement (T-Mobile US, Inc.)
Junior Priority Debt. The To the extent that the Company or any Grantor incurs any Junior Priority Agent Additional Debt, the Junior Priority Additional Debt Representative for, and each Junior Priority Secured Party with respect to, the Junior Priority Secured Additional Debt Obligations shall be bound by the following terms and conditions:
(a) Any and all Liens now existing or hereafter created or arising in favor of any such Junior Priority Secured Party securing or purporting to secure the Junior Priority Secured Additional Debt Obligations, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, are expressly junior in priority, operation and effect to any and all Liens now existing or hereafter created or arising in favor of the First Priority Secured Parties securing or purporting to secure the First Priority Secured Obligations and the Second Priority Secured Parties securing the Second Priority Secured Obligations, notwithstanding (i) anything to the contrary contained in any agreement or filing to which any such Junior Priority Secured Party may now or hereafter be a party, and regardless of the time, order or method of grant, attachment, recording or perfection of any financing statements or other security interests, assignments, pledges, deeds, mortgages and other liens, charges or encumbrances or any defect or deficiency or alleged defect or deficiency in any of the foregoing, (ii) any provision of the Uniform Commercial Code or any applicable law or any agreement with respect to the First Priority Secured Obligations, the Second Priority Secured Obligations or the Junior Priority Secured Additional Debt Obligations or any other circumstance whatsoever and (iii) the fact that any such Liens in favor of any First Priority Secured Party securing or purporting to secure any of the First Priority Secured Obligations or in favor of any Second Priority Secured Party securing any of the Second Priority Secured Obligations are (x) subordinated to any Lien securing any obligation of any Grantor other than the Junior Priority Secured Additional Debt Obligations or (y) otherwise subordinated, voided, avoided, invalidated or lapsed;
(b) No such Junior Priority Secured Party shall object to or contest, or support any other Person in contesting or objecting to, in any proceeding (including without limitation, any Insolvency Proceeding), the validity, extent, perfection, priority or enforceability of any security interest in the Collateral granted to, or the allowability of any claims asserted by, to any First Priority Secured Party or any Second Priority Secured Party. Notwithstanding any failure by any First Priority Secured Party or any Second Priority Secured Party to perfect its security interests in the Collateral or any avoidance, invalidation or subordination by any third party or court of competent jurisdiction of the security interests in the Collateral granted to the First Priority Secured Parties or the Second Priority Secured Parties, the priority and rights as between the First Priority Secured Parties, the Second Priority Secured Parties and the Junior Priority Secured Parties with respect to the Collateral shall be as set forth herein;
(c) No such Junior Priority Secured Party shall, prior to the payment and performance in full of the First Priority Secured Obligations and the Second Priority Secured Obligations, assert, demand, request, plead or otherwise claim the benefit of, any marshalling, appraisal, valuation and any other right that may otherwise be available under any applicable requirement Requirement of law Law with respect to any Collateral to a creditor in its capacity as beneficiary of a junior lien on such Collateral;
(d) No such Junior Priority Secured Party shall, in or in connection with any Insolvency Proceeding, file any pleadings or motions, take any position at any hearing or proceeding of any nature, or otherwise take any action whatsoever, in each case in respect of any of the Collateral, including, without limitation, with respect to the determination of any Liens or claims held by any First Priority Secured Party or any Second Priority Secured Party or the value of any claims of such parties under Section 506(a) of the Bankruptcy Code or otherwise; provided that any such Junior Priority Secured Party may file a proof of claim in an Insolvency Proceeding, subject to the limitations contained in this Collateral Trust Agreement and only if consistent with the terms and the limitations on such Junior Priority Secured Party imposed hereby;
(e) If any Grantor becomes subject to any Insolvency Proceeding, each of the Secured Parties hereunder (subject, in the case of the Second Priority Secured Parties, to subsection 8.1(e) hereunder) shall retain their rights to seek to provide any DIP Financing to any such Grantor, and to object (subject to the provisions of this subsection (e) and subsection 8.1(e) hereunder) to any such proposal for DIP Financing. If any Grantor becomes subject to any Insolvency Proceeding, and if the Majority First Priority Agent desires Secured Parties (to the extent there are any First Priority Secured Parties) and the Majority Second Priority Secured Parties (to the extent there are any Second Priority Secured Parties) desire to consent (or not object) to the use of cash collateral under the Bankruptcy Code or to provide any DIP Financing to any Grantor or to consent (or not object) to the provision of any DIP Financing to any Grantor, whether or not proceeds of any such DIP Financing are being used to Refinance all or any portion of the First Priority Secured Obligations or the Second Priority Secured Obligations, then each such Junior Priority Secured Party (ai) will be deemed to have consented to, and will raise no objection to, nor support any other Person objecting to, the use of such cash collateral or such DIP Financing, (bii) will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in subsection 8.1(g8.2(g) below and (ciii) will subordinate (and will be deemed hereunder to have subordinated) its Junior Priority Secured Additional Debt Obligations (ix) to such DIP Financing on the same terms as the First Priority Secured Obligations and Second Priority Secured Obligations are subordinated thereto (and such subordination will not alter in any manner the terms of this Collateral Trust Agreement) or, to the extent the proceeds of such DIP Financing refinance all or any portion of the First Priority Secured Obligations, on the same terms as the Junior Second Priority Secured Obligations are subordinated to the First Priority Secured Obligations pursuant to this Collateral Trust Agreement, (iiy) to any adequate protection provided to the First Priority Secured Parties or the Second Priority Secured Parties and (iiiz) to any “carve-out” agreed to by the First Priority AgentAgent or the Second Priority Agents, and (div) agrees that notice received two calendar days prior to the entry of an order approving such usage of cash collateral or approving such financing shall be adequate notice;
(f) No such Junior Priority Secured Party will seek relief from the automatic stay or from any other stay in any Insolvency Proceeding or take any action in derogation thereof, in each case in respect of any Collateral, without the prior written consent of the Majority First Priority Secured Parties (to the extent there are any First Priority Secured Parties) and the Majority Second Priority Secured Parties (to the extent there are any Second Priority Secured Parties);
(g) No such Junior Priority Secured Party shall object to, contest, or support any other Person objecting to or contesting, (i) any request by any First Priority Secured Party or any Second Priority Secured Party for adequate protection or any adequate protection provided to any First Priority Secured Party or Second Priority Secured Party, (ii) any objection by any First Priority Secured Party or Second Priority Secured Party to any motion, relief, action or proceeding based on a claim of a lack of adequate protection or (iii) the allowance and/or payment of interest, fees, expenses or other amounts to any First Priority Secured Party or any Second Priority Secured Party under Section 506(b) or 506(c) of the Bankruptcy Code or otherwise. Notwithstanding anything contained in this subsection 8.1 (but subject to all other provisions of this Collateral Trust Agreement), in any Insolvency Proceeding, (x) if the First Priority Secured Parties (or to the extent there are any subset thereofFirst Priority Secured Parties) and any Second Priority Secured Parties (to the extent there are any Second Priority Secured Parties) are granted adequate protection consisting of a Lien additional collateral (with replacement liens on such additional or replacement collateral and/or collateral) and superpriority claims in connection with any DIP Financing or use of cash collateral, and such First Priority Secured Parties and Second Priority Secured Parties, as the case may be, do not object to the adequate protection being provided to them, then in connection with any such DIP Financing or use of cash collateral such Junior Priority Secured Parties may seek or accept adequate protection consisting solely of a replacement Lien on the same additional or replacement collateral, subordinated to the Liens securing and providing adequate protection for the First Priority Secured Obligations, Second Priority Secured Obligations and such DIP Financing on the same basis as the other Liens securing the Junior Priority Secured Additional Debt Obligations are so subordinated to the First Priority Secured Obligations and Second Priority Secured Obligations under this Collateral Trust Agreement and superpriority claims junior in all respects to the superpriority claims granted to the First Priority Secured Parties and the Second Priority Secured Parties and (y) in the event any such Junior Priority Secured Party seeks or accepts adequate protection in accordance with clause (x) above and such adequate protection is granted in the form of a Lien on additional collateralcollateral as contemplated by clause (x) above, then such Junior Priority Secured Party agrees that the First Priority Secured Parties and the Second Priority Secured Parties shall also be granted a senior Lien on such additional collateral as security and adequate protection for the First Priority Secured Obligations and the Second Priority Secured Obligations, respectively, and any such DIP Financing and that any Lien on such additional collateral securing or providing adequate protection for the Junior Priority Secured Additional Debt Obligations shall be subordinated to the Liens on such collateral securing the First Priority Secured Obligations, the Second Priority Secured Obligations and any such DIP Financing (and all Obligations relating thereto) and any other Liens granted to the First Priority Secured Parties or the Second Priority Secured Parties as adequate protection, with such subordination to be on the same terms that the other Liens securing the Junior Priority Secured Additional Debt Obligations are subordinated to the Liens securing such First Priority Secured Obligations and Second Priority Secured Obligations under this Collateral Trust Agreement. The Junior Priority Secured Parties agree that except as expressly set forth in this subsection 8.1 none of them shall seek or accept adequate protection without the prior written consent of the Majority First Priority Secured Parties (to the extent there are any First Priority Secured Parties) and the Majority Second Priority Secured Parties (to the extent there are any Second Priority Secured Parties);
(h) If any First Priority Secured Party or Second Priority Secured Party is required in any Insolvency Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of any Grantor, because such amount was avoided or ordered to be paid or disgorged for any reason, including without limitation because it was found to be a fraudulent or preferential transfer, any amount (a “Senior Recovery”), whether received as proceeds of security, enforcement of any right of set-off or otherwise, then the First Priority Secured Obligations or Second Priority Secured Obligations, as the case may be, shall be reinstated to the extent of such Senior Recovery and deemed to be outstanding as if such payment had not occurred and the payment and performance in full of the First Priority Secured Obligations or Second Priority Secured Obligations, as the case may be, shall be deemed not to have occurred. If this Collateral Trust Agreement shall have been terminated prior to such Senior Recovery, this Collateral Trust Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. The Junior Priority Secured Parties agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Collateral Trust Agreement, whether by preference, fraudulent transfer preference or otherwise, it being understood and agreed that the benefits of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Collateral Trust Agreement;
(i) No such Junior Priority Secured Party shall, in an Insolvency Proceeding or otherwise, oppose any sale or disposition of any assets of any Grantor that is supported by the each Holder Representative in respect of First Priority AgentSecured Obligations and Second Priority Secured Obligations, and each such Junior Priority Secured Party will be deemed to have consented under Section 363 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law (and otherwise) to any sale supported by the each Holder Representative in respect of First Priority Agent Secured Obligations and Second Priority Secured Obligations and to have released its Liens on such assets; provided that the net cash proceeds of such sale shall have been applied to the Secured Obligations in accordance with subsection 3.4 or the parties’ respective Liens shall have been attached to such net cash proceeds in accordance with the Lien priorities set forth in this Collateral Trust Agreement3.4;
(j) Each such Junior Priority Secured Party acknowledges and agrees that because of, among other things, their differing rights in the Collateral, the Junior Priority Secured Additional Debt Obligations are fundamentally different from the First Priority Secured Obligations and Second Priority Secured Obligations and must be separately classified in any plan of reorganization or similar dispositive restructuring plan proposed, confirmed proposed or adopted in an Insolvency Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims of the First Priority Secured Parties, the Second Priority Secured Parties and the Junior Priority Secured Parties in respect of the Collateral constitute only one secured claim (rather than separate classes of senior and junior secured claims), then the Junior Priority Secured Parties hereby acknowledge and agree that all distributions shall be made as if there were separate classes of senior and junior secured claims against the Grantors in respect of the Collateral (with the effect being that, to the extent that the aggregate value of the Collateral is sufficient (for this purpose ignoring all claims held by the Junior Priority Secured Parties), the First Priority Secured Parties and the Second Priority Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of Post-Petition Interest before any distribution is made in respect of the claims held by the Junior Priority Secured Parties, with the Junior Priority Secured Parties hereby acknowledging and agreeing to turn over to the First Priority Secured Parties or Second Priority Secured Parties, as the case may be, amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of the Junior Priority Secured Parties;
(k) No Junior Priority Secured Party (whether in the capacity of a secured creditor or an unsecured creditor) shall propose, vote in favor of, or otherwise directly or indirectly support any plan of reorganization or similar dispositive restructuring plan that violates or is otherwise inconsistent with the priorities set forth in Section 3.4 or the other provisions of this Collateral Trust Agreement. To the extent that a Junior Priority Secured Party has not voted its claim with respect to the Junior Priority Secured Additional Debt Obligations in any Insolvency Proceeding on any proposed plan of reorganization or similar dispositive restructuring plan prior to the date which is 10 days before the expiration of the time to vote such claim, the Collateral Trustee may vote such claim on behalf of such Junior Priority Secured Party at the direction of the Controlling Party;
(l) No such Junior Priority Secured Party shall oppose or seek to challenge any claim by any First Priority Secured Party for allowance in any Insolvency Proceeding of Post-Petition Interest, fees or expenses in respect of any First Priority Secured Obligation. No First Priority Secured Party shall oppose or seek to challenge any claim by any Junior Priority Secured Party for the accrual (but not payment) in any Insolvency Proceeding of Post-Petition Interest (after taking into account the First Priority Secured Obligations);
(m) No such Junior Priority Secured Party shall (i) object to any motion by any First Priority Secured Party seeking relief from the automatic stay as provided in Section 362 of the Bankruptcy Code or any similar provision of any applicable Bankruptcy Law or any other stay in respect of the Collateral, (ii) object to, oppose, support any objection, or take any other action to impede, the right of any First Second Priority Secured Party to make an election under Section 1111(b)(2) of the Bankruptcy Code or any similar provision of any applicable Bankruptcy Law, or (iii) assert or enforce any claim under Section 506(c) of the Bankruptcy Code or any similar provision of any applicable Bankruptcy Law senior to or on a parity with the Liens securing the First Priority Secured Obligations for costs or expenses of preserving or disposing of any Collateral;
(n) Nothing contained herein shall prohibit or in any way limit any First Priority Secured Party from objecting in any Insolvency Proceeding or otherwise to any action taken by any Junior Priority Secured Party, including the seeking by any Junior Priority Secured Party of adequate protection (except as provided in subsection 8.1(g)) or the asserting by any Junior Priority Secured Party of any of its rights and remedies under any Junior Priority Debt Document in respect of Junior Priority Secured Obligations, the Trust Security Documents or otherwise;
(o) This Collateral Trust Agreement is a “subordination agreement” undSec
Appears in 1 contract
Sources: Collateral Trust and Intercreditor Agreement (Istar Financial Inc)