Priority Lien Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any Priority Lien Obligations constituting Additional Notes or a Series of Priority Lien Debt that is issued or incurred after the date hereof provided that: (1) such Priority Lien Obligations are identified as Priority Lien Debt in accordance with the procedures set forth in Section 3.8(b); and (2) unless such debt is issued under an existing Priority Lien Document for any Series of Priority Lien Debt whose Priority Lien Representative is already party to this Agreement, the designated Priority Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and promptly delivers the same to the Collateral Trustee. (b) The Issuers will be permitted to designate as an additional holder of Priority Lien Debt hereunder each Person who is, or who becomes, the registered holder of Priority Lien Debt incurred by the Issuers or any other Grantor after the date of this Agreement in accordance with the terms of all applicable Priority Lien Documents. The Issuers may only effect such designation by delivering to the Collateral Trustee an Additional Secured Debt Designation that: (1) states that the Company or applicable Grantor intends to incur additional Priority Lien Debt (“Additional Priority Lien Debt”) that is permitted by each applicable Priority Lien Document to be incurred and to be secured with a Priority Lien equally and ratably with all previously existing and future Priority Lien Debt; (2) specifies the name, address and contact information of the Priority Lien Representative for such series of Additional Priority Lien Debt for purposes of Section 7.5; (3) attaches as Exhibit 1 to such Additional Secured Debt Designation a Reaffirmation Agreement in substantially the form attached as Exhibit 1 to Exhibit A of this Agreement, which Reaffirmation Agreement has been duly executed by the Company and the other Grantors; and (4) states that the Company has caused a copy of the Additional Secured Debt Designation and the related Collateral Trust Joinder to be delivered to each then existing Priority Lien Representative. Although the Issuers shall be required to deliver a copy of each Additional Secured Debt Designation and each Collateral Trust Joinder to each then existing Priority Lien Representative, the failure to so deliver a copy of the Additional Secured Debt Designation and/or Collateral Trust Joinder to any then-existing Priority Lien Representative shall not affect the status of such debt as Additional Priority Lien Debt if the other requirements of this Section 3.8 are complied with. Each of the Collateral Trustee and the other then existing Priority Lien Representatives shall receive a legal opinion or opinions of counsel (subject to customary assumptions and qualifications) from the Issuers as to the Additional Priority Lien Debt being permitted by the terms of the Priority Lien Documents and secured by a valid and perfected security interest in the Collateral; provided that (A) such legal opinion or opinions need not address any collateral of a type not previously covered by any legal opinion delivered by or on behalf of the Issuers and (B) nothing shall preclude such legal opinion or opinions from being delivered on a post-closing basis after the incurrence of such Additional Priority Lien Debt if permitted by the Priority Lien Representative for such Additional Priority Lien Debt. Notwithstanding the foregoing, nothing in this Agreement will be construed to allow the Issuers or any other Grantor to incur additional Indebtedness (including Additional Notes) unless otherwise permitted by the terms of all applicable Priority Lien Documents. Liens upon the Collateral to secure Additional Priority Lien Debt shall be created pursuant to the Security Documents that create Liens upon the Collateral to secure the other Priority Lien Obligations as then in effect; provided that, to the extent required by applicable law or as otherwise may be elected by the Company, such Liens upon the Collateral to secure Additional Priority Lien Debt and other Priority Lien Obligations may be created pursuant to a separate set of Security Documents, in favor of the Collateral Trustee, which shall be in all material respects the same form as the Security Documents creating the Liens upon the Collateral to secure the other Priority Lien Obligations as then in effect. Additional Priority Lien Debt shall not be secured by Liens upon any Collateral unless the other Priority Lien Obligations are also secured by Liens on such Collateral. Additional Priority Lien Debt shall be guaranteed by all of the applicable Guarantors (as defined in the Closing Date Indenture) and shall not be guaranteed by any Person that is not a Guarantor. (c) With respect to any Priority Lien Obligations constituting Additional Notes or other Additional Priority Lien Debt that is issued or incurred after the date hereof, the Issuers and each of the Grantors agrees to take such actions (if any) as necessary and as may from time to time reasonably be requested by the Collateral Trustee or any Priority Lien Representative, and enter into such technical amendments, modifications and/or supplements to the then existing Guarantees and Security Documents (or execute and deliver such additional Security Documents) as necessary and as may from time to time be reasonably requested by such Persons (including as contemplated by clause (d) below), to ensure that the Additional Notes or the Additional Priority Lien Debt, as applicable, is secured by, and entitled to the benefits of, the Security Documents, and each Priority Lien Secured Party (by its acceptance of the benefits hereof) hereby agrees to, and authorizes the Collateral Trustee to enter into, any such technical amendments, modifications and/or supplements (and additional Security Documents). Each of the Issuers and the other Grantors hereby further agrees that, if there are any recording, filing or other similar fees payable in connection with any of the actions to be taken pursuant to this Section 3.8(c) or Section 3.8(d), all such amounts shall be paid by, and shall be for the account of, the Issuers and the respective Grantors, on a joint and several basis. (d) Without limitation of the foregoing, the Issuers and each of the other Grantors agrees to take the following actions with respect to all Additional Priority Lien Debt. (1) with respect to any real property Collateral: (A) The applicable Grantor shall enter into and deliver to the Collateral Trustee and the Priority Lien Representative for such Additional Priority Lien Debt, a mortgage modification or new Mortgage with regard to each Material Real Property (as such term is defined in the Closing Date Indenture) that is required to be subject to a Mortgage (each a “Mortgaged Property”) under any Priority Lien Document and is not otherwise an Excluded Property (as such term is defined in the Closing Date Indenture) and is at the time of such incurrence, in proper form for recording in all applicable jurisdictions, in a form reasonably satisfactory to the Collateral Trustee and such Priority Lien Representative; (B) If required under any Priority Lien Documents, the applicable Grantor will cause to be delivered a local and other counsel opinions (subject to customary assumptions and qualifications) with respect to each such Mortgaged Property entered into pursuant to clause (A) above in form and substance, and issued by law firm(s), in each case, reasonably satisfactory to the Collateral Trustee; provided that nothing shall preclude such legal opinion or opinions from being delivered on a post-closing basis after the incurrence of such Additional Priority Lien Debt if permitted by the Priority Lien Representative for such Additional Priority Lien Debt; (C) The applicable Grantor will cause a title company to have delivered to the Collateral Trustee an endorsement to each title insurance policy then in effect for the benefit of the Secured Parties or date down(s) (which may include a new title insurance policy) (each such delivery, a “Title Datedown Product”), in each case insuring that (i) the priority of the Lien of the applicable Mortgage(s) as security for the Priority Lien Obligations has not changed and if a new Mortgage is entered into, that the Lien of such new Mortgage securing the Priority Lien Debt then being incurred shall have the same priority as any existing Mortgage securing then existing Priority Lien Obligations, (ii) since the later of the original date of such title insurance product and the date of the Title Datedown Product delivered most recently prior to (and not in connection with) such Additional Priority Lien Debt, there has been no material adverse change in the condition of title and (iii) there are no intervening Liens which may then or thereafter take priority over the Lien of the applicable Mortgage(s), in each case other than with respect to Liens permitted by each Priority Lien Document; and (D) The applicable Grantor will deliver to the approved title company and the Collateral Trustee all other items reasonably necessary or requested by the Collateral Trustee to maintain the continuing first priority (subject to Permitted Liens (as defined in the Closing Date Indenture)) of (i) the Lien of the Mortgages as security for the Priority Lien Obligations and (ii) any other Mortgages which secure Priority Lien Debt. (2) with respect to any personal property Collateral: (A) The Issuers and the Grantors shall enter into, and deliver to the Collateral Trustee either (x) amendments to this Agreement and the Security Documents that permit the obligations with respect to such Priority Lien Debt to be secured pari passu with the then existing Priority Lien Obligations or (y) additional security and collateral documents which are substantially similar to the Security Documents, in each case, in a form reasonably satisfactory to the Collateral Trustee and each Priority Lien Representative; (B) If required under the applicable Priority Lien Documents, applicable Grantor will cause to be delivered opinions of local and other counsel (subject to customary assumptions and qualifications) with respect to such personal property Collateral, in form and substance, and issued by law firm(s), in each case, reasonably satisfactory to the Collateral Trustee; provided that nothing shall preclude such legal opinion or opinions from being delivered on a post-closing basis after the incurrence of such Additional Priority Lien Debt if permitted by the Priority Lien Representative for such Additional Priority Lien Debt; (C) The applicable Grantor will take all actions reasonably necessary or requested by the Collateral Trustee to maintain the continuing first priority (subject to Permitted Liens) of the Liens securing the Priority Lien Obligations such that all Liens securing Additional Priority Lien Debt shall have the same priority as any existing Liens securing the Priority Lien Obligations prior to the incurrence of such Additional Priority Lien Debt and the priority of the Liens security the Priority Lien Obligations shall not be affected by the incurrence of the Additional Priority Lien Debt.
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Priority Lien Debt. To secure the payment of the Priority Lien Obligations and in consideration of the premises and the mutual agreements set forth herein, each of the Grantors, each Priority Lien Representative and each other Priority Lien Secured Party hereby confirms the grant of Liens in favor of the Collateral Agent, and the Collateral Agent hereby accepts and agrees to hold, under this Agreement for the benefit of all current and future Priority Lien Secured Parties, on all of such Grantor’s right, title and interest in, to and under all Collateral and on all Liens now or hereafter granted to the Collateral Agent by each Grantor under any Security Instrument for the benefit of the Priority Lien Secured Parties, together with all of the Collateral Agent’s right, title and interest in, to and under the Security Instruments, and all interests, rights, powers and remedies of the Collateral Agent thereunder or in respect thereof and all cash and non-cash proceeds thereof (collectively, the “Collateral Estate”). The Collateral Agent and its successors and permitted assigns under this Agreement will hold the Collateral Estate for the benefit solely and exclusively of all current and future Priority Lien Secured Parties as security for the payment of all present and future Priority Lien Obligations. Notwithstanding the foregoing, if at any time:
(a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to any all Liens securing the Priority Lien Obligations constituting Additional Notes or a Series have been released as provided in Section 4.1;
(b) the Collateral Agent holds no other property as part of the Collateral Estate;
(c) the Discharge of Priority Lien Debt that is issued or incurred after the date hereof provided that:Obligations has occurred;
(1d) such no monetary obligation (other than indemnification and other contingent obligations not then due and payable and letters of credit that have been cash collateralized at the lower of (i) 105% of the aggregate undrawn amount and (ii) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable Priority Lien Obligations are identified as Priority Lien Debt Documents) is outstanding and payable under this Agreement to the Collateral Agent or any of its agents (whether in accordance with the procedures set forth in Section 3.8(ban individual or representative capacity); and
(2e) unless such debt is issued under an existing Priority Lien Document for any Series of Priority Lien Debt whose Priority Lien Representative is already party to this Agreement, the designated Priority Lien Representative identified pursuant to Section 3.8(b) signs a Collateral Trust Joinder and promptly Company delivers the same to the Collateral Trustee.
(b) The Issuers will be permitted to designate as Agent an additional holder of Officer’s Certificate stating that all Priority Lien Debt hereunder each Person who is, or who becomes, the registered holder of Priority Lien Debt incurred by the Issuers or any other Grantor after the date of this Agreement in accordance with the terms of all applicable Priority Lien Documents. The Issuers may only effect such designation by delivering to the Collateral Trustee an Additional Secured Debt Designation that:
(1) states that the Company or applicable Grantor intends to incur additional Priority Lien Debt (“Additional Priority Lien Debt”) that is permitted by each applicable Priority Lien Document to be incurred and to be secured with a Priority Lien equally and ratably with all previously existing and future Priority Lien Debt;
(2) specifies the name, address and contact information of the Priority Lien Representative for such series of Additional Priority Lien Debt for purposes of Section 7.5;
(3) attaches as Exhibit 1 to such Additional Secured Debt Designation a Reaffirmation Agreement in substantially the form attached as Exhibit 1 to Exhibit A of this Agreement, which Reaffirmation Agreement has been duly executed by the Company and the other Grantors; and
(4) states that the Company has caused a copy of the Additional Secured Debt Designation and the related Collateral Trust Joinder to be delivered to each then existing Priority Lien Representative. Although the Issuers shall be required to deliver a copy of each Additional Secured Debt Designation and each Collateral Trust Joinder to each then existing Priority Lien Representative, the failure to so deliver a copy of the Additional Secured Debt Designation and/or Collateral Trust Joinder to any then-existing Priority Lien Representative shall not affect the status of such debt as Additional Priority Lien Debt if the other requirements of this Section 3.8 are complied with. Each Liens of the Collateral Trustee and the other then existing Priority Lien Representatives shall receive a legal opinion or opinions of counsel (subject to customary assumptions and qualifications) from the Issuers as to the Additional Priority Lien Debt being permitted by the terms Agent have been released in compliance with all applicable provisions of the Priority Lien Documents and secured by a valid and perfected security interest in that the Collateral; provided that (A) such legal opinion or opinions need Grantors are not address any collateral of a type not previously covered by any legal opinion delivered by or on behalf of the Issuers and (B) nothing shall preclude such legal opinion or opinions from being delivered on a post-closing basis after the incurrence of such Additional Priority Lien Debt if permitted by the Priority Lien Representative for such Additional Priority Lien Debt. Notwithstanding the foregoing, nothing in this Agreement will be construed to allow the Issuers or any other Grantor to incur additional Indebtedness (including Additional Notes) unless otherwise permitted by the terms of all applicable Priority Lien Documents. Liens upon the Collateral to secure Additional Priority Lien Debt shall be created pursuant to the Security Documents that create Liens upon the Collateral to secure the other Priority Lien Obligations as then in effect; provided that, to the extent required by applicable law or as otherwise may be elected by the Company, such Liens upon the Collateral to secure Additional Priority Lien Debt and other Priority Lien Obligations may be created pursuant to a separate set of Security Documents, in favor of the Collateral Trustee, which shall be in all material respects the same form as the Security Documents creating the Liens upon the Collateral to secure the other Priority Lien Obligations as then in effect. Additional Priority Lien Debt shall not be secured by Liens upon any Collateral unless the other Priority Lien Obligations are also secured by Liens on such Collateral. Additional Priority Lien Debt shall be guaranteed by all of the applicable Guarantors (as defined in the Closing Date Indenture) and shall not be guaranteed by any Person that is not a Guarantor.
(c) With respect to any Priority Lien Obligations constituting Additional Notes or other Additional Priority Lien Debt that is issued or incurred after the date hereof, the Issuers and each of the Grantors agrees Document to take such actions (if any) as necessary and as may from time to time reasonably be requested by the Collateral Trustee or grant any Priority Lien Representativeupon any property, then this Agreement and enter into such technical amendments, modifications and/or supplements any other Security Instruments then in effect and the Collateral Estate arising hereunder will terminate (subject to the then existing Guarantees and Security Documents (or execute and deliver such additional Security Documents) as necessary and as may from time any reinstatement pursuant to time be reasonably requested by such Persons (including as contemplated by clause (d) belowSection 7.17), to ensure except that the Additional Notes or the Additional Priority Lien Debt, as applicable, is secured by, and entitled to the benefits of, the Security Documents, and each Priority Lien Secured Party (by its acceptance of the benefits hereof) hereby agrees to, and authorizes the Collateral Trustee to enter into, any such technical amendments, modifications and/or supplements (and additional Security Documents). Each of the Issuers and the other Grantors hereby further agrees that, if there are any recording, filing or other similar fees payable in connection with any of the actions to be taken pursuant to this Section 3.8(c) or Section 3.8(d), all such amounts shall be paid by, and shall be for the account of, the Issuers and the respective Grantors, on a joint and several basis.
(d) Without limitation of the foregoing, the Issuers and each of the other Grantors agrees to take the following actions with respect to all Additional Priority Lien Debt.
(1) with respect to any real property Collateral:
(A) The applicable Grantor shall enter into and deliver to the Collateral Trustee and the Priority Lien Representative for such Additional Priority Lien Debt, a mortgage modification or new Mortgage with regard to each Material Real Property (as such term is defined in the Closing Date Indenture) that is required to be subject to a Mortgage (each a “Mortgaged Property”) provisions under any Priority Lien Document and is not otherwise an Excluded Property (as such term is defined in the Closing Date Indenture) and is at the time Documents that are expressly stated to survive termination of such incurrence, in proper form for recording in all applicable jurisdictions, in a form reasonably satisfactory to the Collateral Trustee and such Priority Lien Representative;
(B) If required under any Priority Lien Documents, the applicable Grantor will cause to be delivered a local and other counsel opinions (subject to customary assumptions and qualifications) with respect to each such Mortgaged Property entered into pursuant to clause (A) above in form and substance, and issued by law firm(s), in each case, reasonably satisfactory to the Collateral Trustee; provided Documents that nothing shall preclude such legal opinion or opinions from being delivered on a post-closing basis after the incurrence of such Additional Priority Lien Debt if permitted by the Priority Lien Representative for such Additional Priority Lien Debt;
(C) The applicable Grantor will cause a title company to have delivered to the Collateral Trustee an endorsement to each title insurance policy then in effect for the benefit of the Secured Parties or date down(s) (which may include a new title insurance policy) (each such delivery, a “Title Datedown Product”), in each case insuring that (i) the priority of the Lien of the applicable Mortgage(s) as security for the Priority Lien Obligations has not changed and if a new Mortgage is entered into, that the Lien of such new Mortgage securing the Priority Lien Debt then being incurred shall have the same priority as any existing Mortgage securing then existing Priority Lien Obligations, (ii) since the later of the original date of such title insurance product and the date of the Title Datedown Product delivered most recently prior to (and not in connection with) such Additional Priority Lien Debt, there has been no material adverse change in the condition of title and (iii) there are no intervening Liens which may then or thereafter take priority over the Lien of the applicable Mortgage(s), in each case other than with respect to Liens permitted by each Priority Lien Document; and
(D) The applicable Grantor will deliver to the approved title company and the Collateral Trustee all other items reasonably necessary or requested enforceable by the Collateral Trustee to maintain the continuing first priority Agent or any of its agents (subject to Permitted Liens (as defined whether in the Closing Date Indenture)an individual or representative capacity) of (i) the Lien of the Mortgages as security for the Priority Lien Obligations and (ii) any other Mortgages which secure Priority Lien Debt.
(2) will remain enforceable in accordance with respect to any personal property Collateral:
(A) their terms. The Issuers and the Grantors shall enter into, and deliver to parties further agree that the Collateral Trustee either (x) amendments to this Agreement Estate will be held and the Security Documents that permit the obligations with respect to such Priority Lien Debt to be secured pari passu with the then existing Priority Lien Obligations or (y) additional security and collateral documents which are substantially similar to the Security Documents, in each case, in a form reasonably satisfactory to the Collateral Trustee and each Priority Lien Representative;
(B) If required under the applicable Priority Lien Documents, applicable Grantor will cause to be delivered opinions of local and other counsel (subject to customary assumptions and qualifications) with respect to such personal property Collateral, in form and substance, and issued by law firm(s), in each case, reasonably satisfactory to the Collateral Trustee; provided that nothing shall preclude such legal opinion or opinions from being delivered on a post-closing basis after the incurrence of such Additional Priority Lien Debt if permitted by the Priority Lien Representative for such Additional Priority Lien Debt;
(C) The applicable Grantor will take all actions reasonably necessary or requested distributed by the Collateral Trustee to maintain the continuing first priority (Agent subject to Permitted Liens) of the Liens securing the Priority Lien Obligations such that all Liens securing Additional Priority Lien Debt shall have the same priority as any existing Liens securing the Priority Lien Obligations prior to the incurrence of such Additional Priority Lien Debt and the priority of the Liens security the Priority Lien Obligations shall not be affected by the incurrence of the Additional Priority Lien Debtfurther agreements herein.
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