Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding, and notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Senior Lien Obligations granted on the Shared Collateral or the existence of any intervening third party Liens and notwithstanding any provisions of the Uniform Commercial Code of any jurisdictions, any applicable real estate laws, or any other circumstance whatsoever (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and (i) the Applicable Authorized Representative or any Senior Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, (ii) any distribution is made in respect of any Shared Collateral in any Bankruptcy Case or other Insolvency or Liquidation Proceeding of any Borrowers or any other Grantor or (iii) any Senior Lien Secured Party receives any payment pursuant to any Senior/Junior Intercreditor Agreement or any other intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral (including any amount paid under any title insurance policy or any insurance policy or in connection with any condemnation or eminent domain proceeding) by any Senior Lien Secured Party or received by the Applicable Authorized Representative or any Senior Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral (including any amount paid under any title insurance policy) and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which any Senior Lien Secured Parties are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”) shall be applied:
Appears in 1 contract
Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding, and notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Senior Lien Obligations granted on the Shared Collateral or the existence of any intervening third party Liens and notwithstanding any provisions of the Uniform Commercial Code of any jurisdictions, any applicable real estate laws, or any other circumstance whatsoever (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and (i) the Applicable Authorized Representative or any Senior Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, (ii) any distribution is made in respect of any Shared Collateral in any Bankruptcy Case or other Insolvency or Liquidation Proceeding of any Borrowers Borrower or any other Grantor or (iii) any Senior Lien Secured Party receives any payment pursuant to the ABL Intercreditor Agreement, any Senior/Junior Intercreditor Agreement or any other intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral (including any amount paid under any title insurance policy or any insurance policy or in connection with any condemnation or eminent domain proceeding) by any Senior Lien Secured Party or received by the Applicable Authorized Representative or any Senior Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral (including any amount paid under any title insurance policy) and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which any Senior Lien Secured Parties are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”) shall be applied:
Appears in 1 contract
Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Pari Passu Documents to the contrary notwithstanding, and notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Senior Lien Obligations granted on the Shared Collateral or the existence of any intervening third party Liens and notwithstanding any provisions of the Uniform Commercial Code of any jurisdictions, any applicable real estate laws, or any other circumstance whatsoever (but subject to Section 1.03SECTION 1.01(b) of this Agreement), if an Event of Default has occurred and is continuing, and (i) the Applicable Authorized Representative whether or not any Senior Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, (ii) any distribution is made in respect of any Shared Collateral in any Bankruptcy Case or other Insolvency or Liquidation Proceeding of any Borrowers has been commenced by or against the Company or any other Grantor Grantor, after the occurrence and during the continuance of one or (iii) more Events of Default, any Senior Lien Secured Party receives any payment pursuant to any Senior/Junior Intercreditor Agreement Common Collateral or any other intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral (including any amount paid under any title insurance policy or any insurance policy or thereof received in connection with the sale or other disposition of, or collection on, any condemnation or eminent domain proceeding) by any Senior Lien Secured Party or received Common Collateral upon the exercise of remedies under the Pari Passu Security Documents by the Applicable Authorized Representative or Revolving Credit Facility Collateral Agent, any Senior Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral (including any amount paid under any title insurance policy) and proceeds payment on account of any such Common Collateral received as a distribution (subjector recovery in any Insolvency or Liquidation Proceeding, in any Subordination Document Distribution or collection on any Subordination Document Distribution received upon the case exercise of remedies under the Pari Passu Subordination Documents by the Revolving Credit Facility Collateral Agent, and any payment or distribution on account of any such distribution, to the sentence immediately following) to which Pari Passu Subordination Document received as a distribution or recovery in any Senior Lien Secured Parties are entitled under any intercreditor agreement (other than this Agreement) Insolvency or Liquidation Proceeding (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution the foregoing being collectively referred to as “Proceeds”) ), in each case, shall be applied:applied in the following order: FIRST, to the payment of all then unpaid (a) fees and indemnities and (b) legal fees, costs and expenses or other liabilities of any kind incurred, in each case, by the Collateral Agents or Administrative Agents in their capacities as such in connection with any Pari Passu Security Document, any of the Pari Passu Lien Obligations or any Pari Passu Subordination Document, including (i) all court costs, (ii) the reasonable fees and expenses of their agents and legal counsel, (iii) the repayment of all advances made by the Collateral Agents or Administrative Agents, as applicable, hereunder or under any other Pari Passu Security Document on behalf of Grantors and (iv) any other costs or expenses incurred in connection with the administration of or the exercise of any right or remedy hereunder or under any other Pari Passu Security Document or Pari Passu Subordination Document, in each case of the foregoing, to the extent the foregoing constitutes Pari Passu Lien Obligations under the Pari Passu Documents for the applicable Series and in accordance with and subject to the expense reimbursement and indemnification requirements in the applicable Pari Passu Documents; SECOND, to the payment of all other Pari Passu Lien Obligations other than Term Loan Excess Principal, including cash collateralization of letters of credit to the extent required under the Revolving Credit Facility (the amounts so applied to be distributed pro rata among the Pari Passu Secured Parties in accordance with the amounts of the Pari Passu Lien Obligations owed to them on the date of any such distribution); and THIRD, to the payment of Term Loan Excess Principal (the amounts so applied to be distributed pro rata among the Term Loan Secured Parties in accordance with the amounts of the Excess Term Loan Principal owed to them on the date of any such distribution); and FOURTH, after payment in full of all Pari Passu Lien Obligations, to the Grantors or their successors or assigns, or as a court of competent jurisdiction may otherwise direct. Notwithstanding the foregoing, distributions shall be subject to SECTION 1.01(b), including that with respect to any Common Collateral for which a third party (other than a Pari Passu Secured Party and, without limiting the foregoing, after taking into account the effect of any applicable intercreditor agreements) has a Lien that is junior in priority to the Lien of any Series of Pari Passu Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the Lien of any other Series of Pari Passu Lien Obligations (such third party, an “Intervening Creditor”), the value of any Common Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Common Collateral or Proceeds in respect of Common Collateral to be distributed in respect of the Series of Pari Passu Lien Obligations with respect to which such Impairment exists.
Appears in 1 contract
Samples: Passu Intercreditor Agreement (Summit Midstream Partners, LP)
Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Senior Subordinated Priority Debt Documents to the contrary notwithstanding, and notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Senior Lien Obligations granted on the Shared Collateral or the existence of any intervening third party Liens and notwithstanding any provisions of the Uniform Commercial Code of any jurisdictions, any applicable real estate laws, or any other circumstance whatsoever (but subject to Section 1.0314.06), if an Event of Default has occurred and is continuing, and (i) the Applicable Authorized Representative or any Senior Lien Subordinated Secured Party is taking action to enforce rights in respect of any Senior Subordinated Priority Shared Collateral, (ii) or any distribution is made in respect of any Senior Subordinated Priority Shared Collateral in any Bankruptcy Case or other Insolvency or Liquidation Proceeding of any Borrowers the Borrower or any other Grantor Debtor, or (iii) any Senior Lien Subordinated Secured Party receives any payment pursuant to any Senior/Junior Intercreditor this Agreement or any other intercreditor agreement (other than this Agreement) with respect to any Senior Subordinated Priority Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Senior Subordinated Priority Shared Collateral (including any amount paid under any title insurance policy or any insurance policy or in connection with any condemnation or eminent domain proceeding) by any Senior Lien Subordinated Secured Party or received by the Applicable Authorized Representative or any Senior Lien Subordinated Secured Party pursuant to any such intercreditor agreement this Agreement with respect to such Senior Subordinated Priority Shared Collateral (including any amount paid under any title insurance policy) and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the Senior Subordinated Priority Debt Obligations are entitled (together the “Senior Subordinated Collateral Proceeds”, shall be applied first, to the payment in full in cash of all fees, expenses and other amounts owing to the Designated Senior Subordinated Priority Representative and each other Senior Subordinated Party Representative (in each case in its capacity as such) pursuant to the terms of any Senior Lien Secured Parties are entitled under Subordinated Priority Debt Document, and second, subject to Section 14.06, to the payment in full in cash of the Senior Subordinated Priority Debt Obligations of each Series on a ratable basis to the extent that Series consists of Senior Subordinated Parties, with such proceeds to be applied to the Senior Subordinated Priority Debt Obligations of a given Series in accordance with the terms of the applicable Senior Subordinated Priority Debt Documents. Notwithstanding the foregoing, with respect to any intercreditor agreement Senior Subordinated Priority Shared Collateral for which a third party (other than this Agreementa Senior Subordinated Secured Party) (all proceeds has a lien or security interest that is junior in priority to the security interest of any sale, collection or other liquidation Series of Senior Subordinated Priority Debt Obligations but senior (as determined by appropriate legal proceedings in the case of any Collateral and all proceeds dispute) to the security interest of any other Series of Senior Subordinated Priority Debt Obligations (such distribution being collectively referred third party, a “Senior Subordinated Priority Intervening Creditor”), the value of any Senior Subordinated Priority Shared Collateral or Proceeds which are allocated to as “Proceeds”) such Senior Subordinated Priority Intervening Creditor shall be applied:deducted on a ratable basis solely from the Senior Subordinated Priority Collateral or proceeds to be distributed in respect of the Series of Senior Subordinated Priority Debt Obligations with respect to which such Impairment exists.
Appears in 1 contract
Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding, and notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Senior Lien Obligations granted on the Shared Collateral or the existence of any intervening third party Liens and notwithstanding any provisions of the Uniform Commercial Code of any jurisdictions, any applicable real estate laws, or any other circumstance whatsoever (but subject to Section 1.031.01(b) of this Agreement), if an Event of Default has occurred and is continuing, and (i) the Applicable Authorized Representative or any Senior Lien Secured Party Term Collateral Agent is taking action to enforce rights in respect of any Shared Common Collateral, (ii) or any distribution is made in respect of any Shared Common Collateral in any Bankruptcy Case or other Insolvency or Liquidation Proceeding of any Borrowers Grantor or any other Grantor or (iii) any Senior Lien Term Secured Party receives any payment pursuant to any Senior/Junior Intercreditor Agreement or any other intercreditor agreement (other than this Agreement) with respect to any Shared Common Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Common Collateral (including any amount paid under any title insurance policy or any insurance policy or in connection with any condemnation or eminent domain proceeding) by any Senior Lien Term Secured Party or received by the Applicable Authorized Representative or any Senior Lien Secured Party Collateral Agent pursuant to any such intercreditor agreement with respect to such Shared Common Collateral (including any amount paid under any title insurance policy) and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which any Senior Lien Secured Parties the Term Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Common Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”) ), shall be applied:applied as follows: FIRST, to the payment of all reasonable fees, costs and expenses incurred by the Authorized Term Collateral Agent in connection with such collection or sale or otherwise in connection with this Agreement, or any other Term Security Document or any of the Term Obligations, including all court costs and the reasonable fees and expenses of its agents, professional advisors and legal counsel, the repayment of all advances made by the Authorized Term Collateral Agent hereunder or under any other Term Security Document on behalf of the Grantors, if any, and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Term Security Document; SECOND, to the payment of all reasonable fees, costs and expenses incurred by the Collateral Agents (other than the Collateral Agent that is the Authorized Term Collateral Agent) and the Other Agents in connection with such collection or sale or otherwise in connection with this Agreement, or any other Term Security Document or any of the Term Obligations, including all court costs and the reasonable fees and expenses of their agents, professional advisors and legal counsel, the repayment of all advances made by such Collateral Agents and Other Agents, as applicable, hereunder or under any other Term Security Document on behalf of Grantors, if any, and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Term Security Document; THIRD, to the payment of all other Term Obligations (the amounts so applied to be distributed pro rata among the Term Secured Parties in accordance with the amounts of the applicable Term Obligations owed to them on the date of any such distribution); FOURTH, after payment in full of all Term Obligations, to the ABL Agent, to be applied in accordance with Section 14 of the ABL Security Agreement (or, if a Replacement ABL Agreement is in effect, in accordance with the applicable sections of the then-extant ABL Credit Agreement Loan Documents) until the ABL Secured Obligations are paid in full; and FIFTH, to the Grantors or their successors or assigns, or as a court of competent jurisdiction may otherwise direct. Notwithstanding the foregoing, with respect to any Common Collateral for which a third party (other than a Term Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of Term Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of Term Obligations (such third party an “Intervening Creditor”), the value of any Common Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Common Collateral or Proceeds to be distributed in respect of the Series of Term Obligations with respect to which such Impairment exists.
Appears in 1 contract
Samples: Term Intercreditor Agreement (Tower Automotive, LLC)
Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding, and notwithstanding Notwithstanding the date, time, method, manner or order of filing or recordation of any document or instrument or method of grant, attachment or perfection of any Liens securing granted to any Series of Senior Lien Obligations granted Second Priority Representative or any Second Priority Debt Parties on the Shared Collateral or the existence of any intervening third party Liens granted to any Senior Representative or any other Senior Secured Party on the Shared Collateral (or any actual or alleged defect in any of the foregoing) and notwithstanding any provisions provision of the Uniform Commercial Code of any jurisdictionsUCC, any applicable real estate lawslaw, any Second Priority Debt Document or any Senior Debt Document or any other circumstance whatsoever whatsoever, each Second Priority Representative, on behalf of itself and each Second Priority Debt Party under its Second Priority Debt Facility, hereby agrees that (but subject a) any Lien on the Shared Collateral securing or purporting to Section 1.03), if an Event secure any Senior Obligations now or hereafter held by or on behalf of Default has occurred and is continuing, and (i) the Applicable Authorized any Senior Representative or any other Senior Secured Party, regardless of how acquired, whether by xxxxx, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects and prior to any Lien Secured Party is taking action on the Shared Collateral securing or purporting to enforce rights in respect secure any Second Priority Debt Obligations and (b) any Lien on the Shared Collateral securing or purporting to secure any Second Priority Debt Obligations now or hereafter held by or on behalf of any Shared CollateralSecond Priority Representative, (ii) any distribution is made Second Priority Debt Parties or any Second Priority Representative, regardless of how acquired, whether by xxxxx, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in respect of any all respects to all Liens on the Shared Collateral securing or purporting to secure any Senior Obligations. All Liens on the Shared Collateral securing or purporting to secure any Senior Obligations shall be and remain senior in all respects and prior to all Liens on the Shared Collateral securing or purporting to secure any Bankruptcy Case Second Priority Debt Obligations for all purposes, whether or not such Liens securing or purporting to secure any Senior Obligations are subordinated to any Lien securing any other Insolvency or Liquidation Proceeding obligation of the Company, any Borrowers Grantor or any other Grantor Person or (iii) any Senior Lien Secured Party receives any payment pursuant to any Senior/Junior Intercreditor Agreement otherwise subordinated, voided, avoided, invalidated or any other intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral (including any amount paid under any title insurance policy or any insurance policy or in connection with any condemnation or eminent domain proceeding) by any Senior Lien Secured Party or received by the Applicable Authorized Representative or any Senior Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral (including any amount paid under any title insurance policy) and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which any Senior Lien Secured Parties are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”) shall be applied:lapsed.
Appears in 1 contract
Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding, and notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Senior Lien Obligations granted on the Shared Collateral or the existence of any intervening third party Liens and notwithstanding any provisions of the Uniform Commercial Code of any jurisdictions, any applicable real estate laws, or any other circumstance whatsoever (but subject to Section 1.031.01(b)), if an Event of Default has occurred and is continuing, and (i) the Applicable Authorized Representative Intercreditor Agent or any Senior Lien First-Priority Secured Party is taking action to enforce rights in respect of any Shared Common Collateral, (ii) or any distribution is made in respect of any Shared Common Collateral in any Bankruptcy Case or other Insolvency or Liquidation Proceeding of any Borrowers Grantor or any other Grantor or (iii) any Senior Lien First-Priority Secured Party receives any payment pursuant to any Senior/Junior Intercreditor Agreement or any other intercreditor agreement (other than this Agreement) with respect to any Shared Common Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral (including any amount paid under any title insurance policy or any insurance policy or in connection with any condemnation or eminent domain proceeding) by any Senior Lien First-Priority Secured Party or received by the Applicable Authorized Representative Intercreditor Agent or any Senior Lien First-Priority Secured Party pursuant to any such intercreditor agreement with respect to such Shared Common Collateral (including any amount paid under any title insurance policy) and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which any Senior Lien Secured Parties the First-Priority Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied by the Intercreditor Agent in the order specified below: FIRST, to the payment of all costs and expenses incurred by the Intercreditor Agent and any other Authorized Representative in connection with such collection or sale or otherwise in connection with this Agreement, any Secured Credit Document or any of the First-Priority Obligations, including without limitation all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Intercreditor Agent or the relevant Authorized Representatives hereunder or under any Secured Credit Document on behalf of any Grantor, any other costs or expenses incurred in connection with the exercise 12 of any right or remedy hereunder or under any Secured Credit Document, and all other fees, indemnities and other amounts owing or reimbursable to the Intercreditor Agent or any other Authorized Representative hereunder or under any Secured Credit Document; SECOND, to the Authorized Representatives for each Series of First-Priority Obligations on a pro rata basis in accordance with the respective amounts of the First-Priority Obligations owed to the First-Priority Secured Parties of each such Series on the date of any such distribution (with the amounts so applied to each Series to be distributed by the Authorized Representative for such Series as specified in the applicable Secured Credit Documents for such Series) until the Discharge of each Series of First-Priority Obligations has occurred; and THIRD, to the Grantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. If, despite the provisions of this Section 2.01(a), any First-Priority Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the First-Priority Obligations to which it is then entitled in accordance with this Section 2.01(a), such First-Priority Secured Party shall hold such payment or recovery in trust for the benefit of all First-Priority Secured Parties for distribution in accordance with this Section 2.01(a). Notwithstanding the foregoing, with respect to any Common Collateral for which a third party (other than a First-Priority Secured Party and, without limiting the foregoing, after taking into account the effect of any applicable intercreditor agreements) has a lien or security interest that is junior in priority to the security interest of any Series of First-Priority Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First-Priority Obligations (such third party an “Intervening Creditor”), the value of any Common Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Common Collateral or Proceeds to be distributed in respect of the Series of First-Priority Obligations with respect to which such Impairment exists. (b) It is acknowledged that the First-Priority Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First-Priority Secured Parties of any Series. (c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First-Priority Obligations granted on the Common Collateral and notwithstanding any provision of the Uniform Commercial Code or PPSA of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First-Priority Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.01(b) hereof), each First-Priority Secured Party hereby agrees that the Liens securing each Series of First-Priority Obligations on any Common Collateral shall be of equal priority. SECTION 2.02 Actions with Respect to Common Collateral; Prohibition on Contesting Liens. (a) With respect to any Common Collateral, (i) notwithstanding Section 2.01, only the Intercreditor Agent shall act or refrain from acting with respect to the Common Collateral, (ii) the 13 Intercreditor Agent shall not follow any instructions with respect to such Common Collateral (including with respect to any intercreditor agreement with respect to any Common Collateral) from any NonControlling Authorized Representative (or any other First-Priority Secured Party) and (iii) no Non-Controlling Authorized Representative or other First-Priority Secured Party (other than the Intercreditor Agent) shall or shall instruct the Intercreditor Agent to, commence any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any other action available to it in respect of, any Common Collateral (including with respect to any intercreditor agreement with respect to any Common Collateral), whether under any First-Priority Collateral Document, applicable law or otherwise, it being agreed that only the Intercreditor Agent shall be applied:entitled to take any such actions or exercise any such remedies with respect to Common Collateral. Notwithstanding the equal priority of the Liens, the Intercreditor Agent may deal with the Common Collateral as if the Controlling Secured Parties had a senior Lien on such Collateral. No Non-Controlling Authorized Representative or Non-Controlling Secured Party will contest, protest or object to any foreclosure proceeding or action brought by the Intercreditor Agent or the Controlling Secured Party or any other exercise by the Intercreditor Agent or the Controlling Secured Party of any rights and remedies relating to the Common Collateral or seek to cause the Intercreditor Agent to do so. The foregoing shall not be construed to limit the rights and priorities of any First-Priority Secured Party, Intercreditor Agent or any Authorized Representative with respect to any Collateral not constituting Common Collateral. (b) Each of the Authorized Representatives agrees that it will not accept any Lien on any Common Collateral for the benefit of any Series of First-Priority Obligations (other than funds deposited for the discharge or defeasance of any Other First-Priority Agreement) other than pursuant to the First-Priority Collateral Documents and, by executing this Agreement (or a Joinder Agreement), each Authorized Representative and the Series of First-Priority Secured Parties for which it is acting hereunder agree to be bound by the provisions of this Agreement and the other First-Priority Collateral Documents applicable to it. (c) Each of the First-Priority Secured Parties agrees that it will not (and hereby waives any right to) contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the perfection, priority, validity or enforceability of a Lien held by or on behalf of any of the First-Priority Secured Parties in all or any part of the Collateral, or the provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of the Intercreditor Agent, any Authorized Representative or any other First-Priority Secured Party to enforce this Agreement. SECTION 2.03
Appears in 1 contract
Samples: Credit Agreement
Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding, and notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Senior Lien Obligations granted on the Shared Collateral or the existence of any intervening third party Liens and notwithstanding any provisions of the Uniform Commercial Code of any jurisdictions, any applicable real estate laws, or any other circumstance whatsoever (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and (i) the Applicable Authorized Representative or any Senior Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, (ii) any distribution is made in respect of any Shared Collateral in any Bankruptcy Case or other Insolvency or Liquidation Proceeding of any Borrowers Borrower or any other Grantor or (iii) any Senior Lien Secured Party receives any payment pursuant to any the Senior/Junior Intercreditor Agreement or any other intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Shared Collateral (including any amount paid under any title insurance policy or any insurance policy or in connection with any condemnation or eminent domain proceeding) by any Senior Lien Secured Party or received by the Applicable Authorized Representative or any Senior Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral (including any amount paid under any title insurance policy) and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which any Senior Lien Secured Parties are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any sale, collection or other liquidation of any Shared Collateral (including any amount paid under any title insurance policy) and all proceeds of any such payment or distribution being collectively referred to as “Proceeds”) ), shall be applied:
Appears in 1 contract
Samples: Guarantee and Collateral Agreement (T-Mobile US, Inc.)
Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding, and notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Senior Lien Obligations granted on the Shared Collateral or the existence of any intervening third party Liens and notwithstanding any provisions of the Uniform Commercial Code of any jurisdictions, any applicable real estate laws, or any other circumstance whatsoever (but subject to Section 1.03), if If an Event of Default (as defined in the Credit Agreement or any Additional First Lien Document) has occurred and is continuing, and (ix) the Applicable Authorized Representative Controlling Collateral Agent (as defined below) or (subject to the terms of the First Lien Parity Intercreditor Agreement) any Senior First Lien Secured Party is taking action to enforce rights in respect of any Shared CollateralCollateral in accordance with the terms of the applicable Secured Credit Documents, (iiy) any distribution is made in respect of any Shared Collateral in any Bankruptcy Case or other Insolvency insolvency or Liquidation Proceeding of any Borrowers or grantor (including any other Grantor adequate protection payments) or (iiiz) any Senior First Lien Secured Party receives any payment pursuant to any Senior/Junior Intercreditor Agreement or any other intercreditor agreement (other than this the First Lien Parity Intercreditor Agreement) with respect to any Shared Collateral, then, in each case, the proceeds (i) of any sale, collection or other liquidation of any such Shared Collateral by any First Lien Secured Party, (including ii) of any amount paid under any title insurance policy distribution received by the Controlling Collateral Agent or any insurance policy or in connection with any condemnation or eminent domain proceeding) by any Senior First Lien Secured Party in any insolvency or received by the Applicable Authorized Representative or liquidation proceedings case of any Senior Lien Secured Party pursuant to any such intercreditor agreement grantor with respect to such Shared Collateral (including any amount paid under any title insurance policyadequate protection payments) (iii) and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) payment to which any Senior the First Lien Secured Parties Obligations are entitled under any intercreditor agreement with respect to the Shared Collateral (other than this the First Lien Parity Intercreditor Agreement) (all proceeds of any sale, collection or other liquidation of any Shared Collateral and all proceeds of any such payment or distribution being collectively referred to as “Proceeds”), will be applied (i) FIRST, to the payment in full of all amounts then due and owing to the Credit Agreement Collateral Agent and each other collateral agent named in the First Lien Parity Intercreditor Agreement or any joinder agreement thereto (in its capacity as such) in connection with such collection or sale or otherwise in connection with the First Lien Parity Intercreditor Agreement or any other Secured Credit Document, (ii) SECOND, to the payment in full of the First Lien Obligations then due and payable of each series secured by a valid and perfected lien on such Shared Collateral on a ratable basis, with such Proceeds to be applied to the First Lien Obligations then due and payable of a given series in accordance with the terms of the applicable Secured Credit Documents; provided, that following the commencement of any insolvency or liquidation proceeding with respect to the Borrower or any other grantor, solely as among the First Lien Secured Parties and solely for purposes of this clause SECOND and not any other Secured Credit Documents, in the event the value of the Shared Collateral is not sufficient for the entire amount of post-petition interest on the First Lien Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other bankruptcy law in such insolvency or liquidation proceeding, the amount of First Lien Obligations of each series of First Lien Obligations shall include only the maximum amount of post-petition interest on the First Lien Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other bankruptcy law in such insolvency or liquidation proceeding and (iii) THIRD, to the applicable Loan Parties or to whomever may be applied:lawfully entitled to receive the same as a court of competent jurisdiction may direct.
Appears in 1 contract
Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Documents to the contrary notwithstanding, and notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Senior First Lien Obligations granted on the Shared Collateral or the existence of any intervening third party Liens liens and notwithstanding any provisions provision of the Uniform Commercial Code of any jurisdictionsjurisdiction, any applicable real estate laws, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First Lien Obligations of any Series or any other circumstance whatsoever (but subject to Section 1.03including, without limitation, the existence of any intervening third party liens), if an Event of Default has occurred and is continuing, and (i) the Applicable Authorized Representative Collateral Agent or any Senior First Lien Secured Party is taking action to enforce rights in respect of any Shared CollateralCollateral (including by making a claim under any title insurance policy or any insurance policy or in connection with any condemnation or eminent domain proceeding), (ii) or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case Insolvency or other Liquidation Proceedings of any Grantor (it being understood that any cash payments in respect of Liens on Shared Collateral securing any First Lien Obligations, whether or not denominated as post-petition interest or adequate protection, paid in any Insolvency or Liquidation Proceeding shall be deemed to constitute a distribution made in respect of any Borrowers Shared Collateral) or any other Grantor or (iii) any Senior First Lien Secured Party receives any payment pursuant to any Senior/Junior Intercreditor Agreement or any other intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the cash and non-cash proceeds of any sale, collection or other liquidation of any such Shared Collateral (including any amount paid under any title insurance policy or any insurance policy or in connection with any condemnation or eminent domain proceeding) by any Senior First Lien Secured Party or received by the Applicable Authorized Representative Collateral Agent or any Senior First Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral (including any amount paid under any title insurance policy) all the cash and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which any Senior Lien Secured Parties are entitled under any intercreditor agreement (other than this Agreement) (all non-cash proceeds of any sale, collection or other liquidation of any Shared Collateral (including any amount paid under any title insurance policy) and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to the Applicable Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document, it being understood that any such payment of amounts owing to the Applicable Collateral Agent (in its capacity as such) shall be applied:made solely out of cash proceeds until the payment in full of such amounts, (ii) SECOND, to the Administrative Agent for (A) the payment in full of all outstanding and non-contingent Loan Agreement Obligations in accordance with the terms of the Loan Agreement, it being understood that obligations in respect to Secured Swap Contracts that have been terminated are outstanding and non-contingent for purposes of this Section 2.01(a), and (B) the deposit of cash collateral under the sole dominion and control of the Loan Agreement Collateral Agent or its designee in an amount equal to 105% of the sum of the aggregate undrawn amount of all then outstanding Letters of Credit pursuant to the Loan Agreement Documents and the aggregate facing and similar fees which will accrue thereon through the stated maturity of the Letters of Credit (assuming no drawings thereon before stated maturity), (iii) THIRD, after the outstanding and non-contingent Loan Agreement Obligations have been repaid in full and the corresponding Commitments (as defined in the Existing Loan Agreement) and commitments of the applicable lenders under any Replacement Loan Agreement have been terminated by corresponding amounts (and after the cash collateralization of the outstanding Letters of Credit required pursuant to the preceding clause), to the FLSO Authorized Representative for the payment in full of all outstanding and non-contingent FLSO Obligations in accordance with and in the priority set forth in the terms of the FLSO Loan Documents (including to the FLSO Collateral Agent in its capacity as such and in the priority set forth in the FLSO Loan Documents (to the extent not already paid to the FLSO Collateral Agent under FIRST above)), (iv) FOURTH, to the Administrative Agent for the deposit of cash collateral in an amount sufficient to secure the payment in full of all then‑contingent Loan Agreement Obligations, including in respect of all outstanding Secured Swap Contracts that have not been terminated, to the extent that such cash collateralization is contemplated by or expressly provided for in the Loan Agreement Documents, (v) FIFTH, to the FLSO Authorized Representative for the deposit of cash collateral in an amount sufficient to secure the payment in full of all then-contingent FLSO Obligations, to the extent that such cash collateralization is contemplated by or expressly provided for in the FLSO Loan Documents, (vi) SIXTH, after the Discharge of all First Lien Obligations (including the repayment in full in cash thereof and the termination of all commitments in connection therewith), to the holders of junior Liens on the Collateral and (vii) SEVENTH, thereafter to the Authority and the other Grantors or their successors or assigns or as a court of competent jurisdiction may direct.
Appears in 1 contract
Samples: First Lien Intercreditor Agreement (Mohegan Tribal Gaming Authority)
Priority of Claims. (a) Anything contained herein or in any of the Secured Credit Senior Debt Documents or the Note Documents to the contrary notwithstanding, and notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Senior Lien Obligations granted on the Shared Collateral or the existence of any intervening third party Liens and notwithstanding any provisions of the Uniform Commercial Code of any jurisdictions, any applicable real estate laws, or any other circumstance whatsoever (but subject to Section 1.03Sections 1.01(b) and 2.01(d) and (e)), if an Event of Default has occurred and is continuing, and (i) the Applicable Authorized Representative Controlling Agent or any Senior Lien Secured Party is taking action to enforce rights in respect of any Shared Collateral, (ii) or any distribution is made in respect of any Shared Collateral in any Bankruptcy Case or other Insolvency or Liquidation Proceeding of any Borrowers Hercules or any other Grantor Subsidiary Guarantor or (iii) any Senior Lien Secured Party receives any payment pursuant to any Senior/Junior Intercreditor Agreement or any other intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, Collateral or the proceeds of any sale, collection or other liquidation of any such Shared Collateral (including any amount paid under any title insurance policy by the Controlling Agent or any insurance policy or other Senior Secured Party in connection with the enforcement of any condemnation or eminent domain proceeding) by right it may have in respect of any Senior Lien Secured Party Shared Collateral (or received by the Applicable Authorized Representative Bank Collateral Agent or any other Senior Lien Secured Party pursuant to any such intercreditor agreement with respect to such Shared Collateral (including any amount paid under any title insurance policy) and in connection with such enforcement), as applicable, the proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which any Senior Lien Secured Parties are entitled under any intercreditor agreement (other than this Agreement) or payment (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall (subject, in the case of any such distribution or payment, to the final sentence of this Section 2.01(a)) be applied (A) FIRST, to the fees and expenses of, and reimbursements and indemnification owed to, the Controlling Agent under this Agreement and under the Senior Debt Documents or Note Documents, as applicable, to which it is a party that are unpaid as of the applicable date of receipt of such proceeds, and to any Senior Secured Party which has theretofore advanced or paid any such fees and expenses of, and reimbursements and indemnification owed to, the Controlling Agent in an amount equal to the amount thereof so advanced or paid by such Senior Secured Party, (B) SECOND, to the fees and expenses of, and reimbursements and indemnification owed to, the Bank Collateral Agent pursuant to the Senior Credit Agreement that do not relate to the Collateral or the exercise of rights and remedies with respect to thereto (which would be the subject of clause FIRST above) and, unless a Collateral Suspension with respect to the Note Obligations or any Series of Additional Senior Debt is in effect, in which case the Authorized Representative of the Note Obligations or such Series, as the case may be, shall receive no amounts under this clause (B), to the Authorized Representative of the Note Obligations pursuant to the Note Documents and each Series of Additional Senior Debt pursuant to the Additional Senior Debt Facilities and the Applicable Collateral Documents, in each case, pro rata based on the amount of such fees, expenses, reimbursements and indemnification amounts, (C) THIRD, subject to Sections 1.01(b) and 2.01(d) and (e), to the payment of the Senior Obligations (including, without limitation, obligations to cash collateralize letters of credit) and the Note Obligations (unless a Collateral Suspension is in effect in respect of the Note Obligations or any Series of Senior Obligations, in which case the Note Obligations or the Series of Senior Obligations that is the subject of a Collateral Suspension, as the case may be, shall receive no amounts under this Clause (C)) then due and owing, pro rata based on the amount of Senior Obligations and the Note Obligations (unless a Collateral Suspension is in effect in respect of the Note Obligations or any Series of Senior Obligations, in which case the amount of Note Obligations or the Series of Senior Obligations that is the subject of a Collateral Suspension, as the case may be, shall be applied:excluded for purposes of this Clause (C)) then due and owing (after giving effect to any payments previously made under this Section), and (D) FOURTH, to Hercules and the Subsidiary Guarantors or their successors or assigns, as their interests may appear, or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a Senior Secured Party) has a lien or security interest that is junior in priority to the security interest of the Note Obligations or any Series of Senior Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of the Note Obligations or any other Series of Senior Obligations (such third party an “Intervening Creditor”), the value of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Note Obligations or the Series of Senior Obligations with respect to which such third party lien or security interest exists.
Appears in 1 contract
