Priority of Claims. (a) Anything contained herein or in any of the Senior Priority Debt Documents to the contrary notwithstanding (but subject to Section 12.06), if any Senior Priority Secured Party is taking action to enforce rights in respect of any Senior Priority Collateral, or any distribution is made in respect of any Senior Priority Shared Collateral in any Insolvency or Liquidation Proceeding of the Borrower or any other Debtor or any Senior Priority Secured Party receives any payment pursuant to this Agreement with respect to any Senior Priority Shared Collateral or otherwise pursuant to Section 4.01, the proceeds of any sale, collection or other liquidation of any such Senior Priority Shared Collateral by any Senior Priority Secured Party or received by any Senior Priority Secured Party pursuant to this Agreement with respect to such Senior Priority Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the Senior Priority Obligations are entitled (together the “Senior 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 Priority Representative and each other Senior Priority Representative (in each case in its capacity as such) pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash of the Senior Priority Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower). Notwithstanding the foregoing, with respect to any Senior Priority Shared Collateral for which a third party (other than a Senior Priority Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of Senior 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 Senior Priority Obligations (such third party, an “Senior Priority Intervening Creditor”), the value of any Senior Priority Shared Collateral or Proceeds which are allocated to such Senior Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Priority Shared Collateral or proceeds to be distributed in respect of the Series of Senior Priority Obligations with respect to which such Impairment exists. (b) Notwithstanding anything contained herein or in any of the Senior Priority Debt Documents to the contrary (but subject to Section 12.07), if any Senior Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Collateral Proceeds, any such proceeds and distributions to which the Senior Priority Obligations are entitled, shall be applied first, to the payment in full in cash of all fees, expenses and other amounts owing to each Senior Priority Representative (in its capacity as such) pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash of the Senior Priority Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower). (c) It is acknowledged that the Senior Priority Obligations of any Series may, subject to the limitations set forth in the then extant Senior Priority Debt 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 12.01(a) or the provisions of this Agreement defining the relative rights of the Senior Priority Secured Parties of any Series.
Appears in 2 contracts
Sources: Intercreditor Agreement, Intercreditor Agreement (Garrett Motion Inc.)
Priority of Claims. (a) Anything contained herein or in any of the Senior Priority Debt ABL Documents or the LC Documents to the contrary notwithstanding (but subject to Section 12.06)notwithstanding, if an Event of Default has occurred and is continuing, and any Senior Priority Secured Party Collateral Agent is taking action to enforce rights in respect of any Senior Priority CollateralCollateral (whether in an Insolvency or Liquidation Proceeding or otherwise), or any distribution is made in respect of any Senior Priority Shared Collateral in any Insolvency or Liquidation Proceeding of the Borrower or any other Debtor or any Senior Priority Secured Party receives any payment pursuant to this Agreement with respect to any Senior Priority Shared Collateral or otherwise pursuant to Section 4.01Grantor, the proceeds of any sale, collection or other liquidation of any such Senior Priority Shared Collateral by any Senior Priority Secured Party or received by any Senior Priority Secured Party pursuant to this Agreement with respect to such Senior Priority Shared Collateral and proceeds of any such distribution Proceeds (subject, in the case of any such distribution, to the sentence immediately followingSection 2.6 hereof) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution, including adequate protection or similar payments under any Debtor Relief Law, being collectively referred to which the Senior Priority Obligations are entitled (together the as “Senior Collateral Proceeds”), ) shall be applied firstas follows:
(i) In the case of LC Priority Collateral, FIRST, to the payment in full of the LC Obligations in cash accordance with Section 9.04 of all fees, expenses the LC Credit Agreement and the other amounts owing to applicable provisions of the Designated Senior Priority Representative and each other Senior Priority Representative (in each case in its capacity as such) pursuant to the terms of any Senior Priority Debt DocumentLC Documents, and second, subject to Section 12.07SECOND, to the payment in full in cash of the Senior ABL Obligations in accordance with Section 2.4(b) of the ABL Credit Agreement and the other applicable provisions of the ABL Documents. If any ABL Obligations remain outstanding after the Discharge of the LC Obligations, all proceeds of the LC Priority Obligations of each Series on a ratable basis, with such proceeds to Collateral will be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower). Notwithstanding the foregoing, with respect to any Senior Priority Shared Collateral for which a third party (other than a Senior Priority Secured Party) has a lien or security interest that is junior in priority to the security interest repayment of any Series of Senior Priority Obligations but senior outstanding ABL Obligations.
(as determined by appropriate legal proceedings in ii) In the case of any dispute) to the security interest of any other Series of Senior ABL Priority Obligations (such third partyCollateral, an “Senior Priority Intervening Creditor”), the value of any Senior Priority Shared Collateral or Proceeds which are allocated to such Senior Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Priority Shared Collateral or proceeds to be distributed in respect of the Series of Senior Priority Obligations with respect to which such Impairment exists.
(b) Notwithstanding anything contained herein or in any of the Senior Priority Debt Documents to the contrary (but subject to Section 12.07), if any Senior Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Collateral Proceeds, any such proceeds and distributions to which the Senior Priority Obligations are entitled, shall be applied firstFIRST, to the payment in full of the ABL Obligations in cash accordance with Section 2.4(b) of all fees, expenses the ABL Credit Agreement and the other amounts owing to each Senior Priority Representative (in its capacity as such) pursuant to applicable provisions of the terms of any Senior Priority Debt DocumentABL Documents, and second, subject to Section 12.07SECOND, to the payment in full in cash of the Senior LC Obligations in accordance with Section 9.04 of the LC Credit Agreement and the other applicable provisions of the LC Documents. If any LC Obligations remain outstanding after the Discharge of the ABL Obligations, all proceeds of the ABL Priority Obligations of each Series on a ratable basis, with such proceeds to Collateral will be applied to the Senior Priority Obligations repayment of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower)any outstanding LC Obligations.
(cb) It is acknowledged that (i) the Senior Priority Obligations aggregate amount of any Series Senior Secured Obligations may, subject to the limitations set forth in the then extant Senior Priority Debt DocumentsABL Credit Agreement and the LC Credit Agreement, both as in effect on the date hereof, may 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 12.01(a2.01(a) or the provisions of this Agreement defining the relative rights of the Senior Priority ABL Secured Parties and the LC Secured Parties and (ii) the Senior Secured Obligations consists or may consist of indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed. The priorities provided for herein shall not be altered or otherwise affected by any Refinancing of either the Junior Secured Obligations (or any part thereof) or the Senior Secured Obligations (or any part thereof), by the release of any SeriesCollateral or of any guarantees for any Junior Secured Obligations or Senior Secured Obligations or by any action that any Representative or Secured Party may take or fail to take in respect of any Collateral.
(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the LC Obligations granted on the Collateral or of any Liens securing the ABL Obligations granted on the Collateral and notwithstanding any provision of the Uniform Commercial Code or other applicable legislation of any jurisdiction, or any other applicable law or the ABL Documents or the LC Documents, or any defect or deficiencies in or failure to perfect any such Liens or any other circumstance whatsoever (1) the Liens on the LC Priority Collateral securing the LC Obligations will rank senior to any Liens on the LC Priority Collateral securing the ABL Obligations and (2) the Liens on the ABL Priority Collateral securing the ABL Obligations will rank senior to any Liens on the ABL Priority Collateral securing the LC Obligations.
(d) For the avoidance of doubt, notwithstanding that Liens granted to the Foreign Collateral Agent, LC Collateral Agent, or ABL Collateral Agent on the Collateral governed by the laws of a jurisdiction located outside of the United States of America (the “Foreign Collateral”) may (A) have legally the same or different ranking due to mandatory legal provisions governing such Foreign Collateral; (B) have been granted or perfected in an order contrary to the contemplated ranking as set forth in this Agreement or (C) not have been granted to ABL Collateral Agent or LC Collateral Agent, the contractual ranking of the Liens on such Foreign Collateral shall be consistent with the ranking set forth in Section 2.1, and, subject to Article VI, all other terms and provisions of this Agreement with respect to Collateral shall be applicable to such Foreign Collateral.
Appears in 2 contracts
Sources: Intercreditor Agreement (Weatherford International PLC), Lc Credit Agreement (Weatherford International PLC)
Priority of Claims. (a) Anything contained herein or in any of the Senior Priority Debt Credit Documents to the contrary notwithstanding (but subject to Section 12.061.01(b)), if any an Event of Default (under and as defined in the Senior Priority Secured Party Credit Documents under which the Designated Collateral Agent is the Senior Representative) has occurred and is continuing, and the Designated Collateral Agent is taking action to enforce rights in respect of any Senior Priority Shared Collateral, or any distribution is made in respect of any Senior Priority Shared Collateral in any Insolvency or Liquidation Proceeding Bankruptcy Case of the Borrower or any other Debtor Grantor or any Senior Priority Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement Agreement) with respect to any Senior Priority Shared Collateral or otherwise pursuant to Section 4.01Collateral, the proceeds of any sale, collection or other liquidation of any such Senior Priority Shared Collateral all Proceeds received by any Senior Priority Secured Party or received by the Designated Collateral Agent or any Senior Priority Secured Party pursuant to this Agreement with respect to such Senior Priority any Shared Collateral and proceeds Proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the any Senior Priority Obligations are Secured Party is entitled under any intercreditor agreement (together the “Senior Collateral Proceeds”other than this Agreement), shall be applied firstby the Designated Collateral Agent by payment to each Collateral Agent for its respective Senior Obligations, in the following order:
(i) FIRST, to the payment in full in cash of all reasonable fees, costs and expenses and other amounts owing to the Designated Senior Priority Representative and incurred by each other Senior Priority Representative Collateral Agent (in each case in its capacity as such) pursuant to the terms of in connection with such collection or sale or otherwise in connection with this Agreement, any other Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash Credit Documents or any of the Senior Priority Obligations Obligations, including all court costs and the reasonable fees, costs and expenses of its agents, professional advisors and legal counsel, and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Senior Credit Documents, in each Series on a ratable basis, with case owed to such proceeds to be applied to the Senior Priority Obligations of a given Series Collateral Agent in accordance with the terms of the applicable Senior Priority Debt Credit Documents (providedthe amounts so applied to be distributed among the Collateral Agents pro rata in accordance with the respective amounts of the Senior Obligations owed to them and described in this clause FIRST on the date of any such distribution and in accordance with the terms of the applicable Senior Credit Documents);
(ii) SECOND, howeversubject to Section 1.01(b), that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent Proceeds remain after the application pursuant to preceding clause (i), to payment of that portion of the Senior Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Senior Secured Parties, including all court costs and the reasonable fees, costs and expenses of their respective agents, professional advisors and legal counsel, breakage costs, tax indemnities, increased costs and similar amounts, in each case to the extent payable in accordance with the applicable Senior Credit Documents (the amounts so applied to be distributed among the Senior Secured Parties pro rata in accordance with the respective amounts of the Senior Obligations owed to them and described in this clause SECOND on the date of any such proceeds distribution and in accordance with the terms of the applicable Senior Credit Documents);
(iii) THIRD, subject to Section 1.01(b), to the extent Proceeds remain after the application pursuant to preceding clause (ii), to payment of that portion of the Senior Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans and Unpaid Drawings in connection with any Superpriority Commitments (the amounts so applied to be distributed among the Senior Secured Parties pro rata in accordance with the respective amounts of the Senior Obligations owed to them and described in this clause THIRD on the date of any such distribution and in accordance with the terms of the applicable Senior Credit Documents);
(iv) FOURTH, subject to Section 1.01(b), to the extent Proceeds remain after the application pursuant to preceding clause (iii), to payment of that portion of the Senior Obligations constituting unpaid principal of the Superpriority Loans (the amounts so applied to be distributed among the Senior Secured Parties pro rata in accordance with the respective amounts of the Senior Obligations owed to them and described in this clause FOURTH on the date of any such distribution and in accordance with the terms of the applicable Senior Credit Documents);
(v) FIFTH, subject to Section 1.01(b), to the extent Proceeds remain after the application pursuant to preceding clause (iv), to payment of that portion of the Senior Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Senior Obligations (the amounts so applied to be distributed among the Senior Secured Parties pro rata in accordance with the respective amounts of the Senior Obligations owed to them and described in this clause FIFTH on the date of any such distribution and in accordance with the terms of the applicable Senior Credit Documents);
(vi) SIXTH, subject to Section 1.01(b), to the extent Proceeds remain after the application pursuant to preceding clause (v), (A) to payment of that portion of the Senior Obligations constituting (I) unpaid principal amount of Loans (other than Superpriority Loans) and unpaid principal of Pari Debt and (II) Senior Obligations then owing under Secured Hedge Agreements and Secured Cash Management Agreements and (B) to Cash Collateralize that portion of Letters of Credit Outstanding comprising the aggregate undrawn amount of Letters of Credit (the amounts so applied to be distributed among the Senior Secured Parties pro rata in accordance with the respective amounts of the Senior Obligations owed to them and described in this clause SIXTH on the date of any such distribution and in accordance with the terms of the applicable Senior Credit Documents); provided that (x) any such amounts applied pursuant to the foregoing clause (B) shall be paid to the Designated Senior Representative for the ratable account of the applicable Issuing Bank to Cash Collateralize such Letters of Credit Outstanding, (y) subject to the relevant Senior Credit Documents, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to this clause SIXTH shall be applied to satisfy drawings under such Letters of Credit as they occur and (z) upon the expiration of any Letter of Credit, the pro rata share of Cash Collateral attributable to such expired Letter of Credit shall be distributed in accordance with this clause SIXTH;
(vii) SEVENTH, subject to Section 1.01(b), to the extent Proceeds remain after the application pursuant to preceding clause (vi), to the payment in full of all other Senior Obligations of each Series (the amounts so applied to be distributed among the Senior Secured Parties pro rata in accordance with the respective amounts of the Senior Obligations owed to them on the date of any such distribution and in accordance with the terms of the applicable Senior Credit Documents); provided that with respect to any Senior Obligations which are Contingent Obligations, payment shall be made to the Collateral Agent for the holder of such Contingent Obligation, to be retained as collateral, for the ratable portion of Senior Obligations consisting of such Contingent Obligations (it being understood that (i) if any portion of such Contingent Obligations become due and payable, the Collateral Agent shall pay to the holder of such Contingent Obligations the ratable share of the amount of cash held as collateral specifically therefor pursuant to this clause which is allocable to such portion of such Contingent Obligations and (ii) if, and to the extent that, any Contingent Obligation ceases to exist (as the result directly from of the expiration or termination of the Contingent Obligation or the disallowance of any claim for such Contingent Obligation), the amount of cash held as collateral therefor pursuant to this clause shall be returned to the Designated Collateral Agent for ratable distribution to respective Collateral Agents for the benefit of the Senior Secured Parties, as provided under this Section 2.01(a)); and
(viii) EIGHTH, any balance of such Proceeds remaining after the application pursuant to preceding clauses (i) and (ii), to the Grantors, their successors or assigns, or as a recoverycourt of competent jurisdiction may otherwise direct. If, despite the provisions of this Section 2.01(a), any Senior Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Senior Obligations to which it is then entitled in accordance with this Section 2.01(a), such Senior Secured Party shall hold such payment or recovery in trust for the benefit of all Senior Secured Parties for distribution or payment in accordance with this Section 2.01(a).
(howsoever describedb) from the Swiss Borrower). Notwithstanding the foregoing, with respect to any Senior Priority Shared Collateral for which a third party (other than a Senior Priority Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of Senior Priority the Initial Credit Agreement Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of Senior Priority Obligations (such third party, an “Senior Priority Intervening Creditor”), the value of any Senior Priority Shared Collateral or Proceeds which are allocated to such Senior Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Priority Shared Collateral or proceeds Proceeds to be distributed in respect of the Series of Senior Priority Obligations with respect to which such Impairment exists.
(b) Notwithstanding anything contained herein or in any of the Senior Priority Debt Documents to the contrary (but subject to Section 12.07), if any Senior Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Collateral Proceeds, any such proceeds and distributions to which the Senior Priority Obligations are entitled, shall be applied first, to the payment in full in cash of all fees, expenses and other amounts owing to each Senior Priority Representative (in its capacity as such) pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash of the Senior Priority Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower).
(c) It is acknowledged that the Senior Priority Obligations of any Series may, subject to the limitations set forth in the then extant Senior Priority Debt 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 12.01(a2.01(a) or the provisions of this Agreement defining the relative rights of the Senior Priority Secured Parties of any Series.
(d) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Senior Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Senior Credit Documents or any defect or deficiencies in the Liens securing the Senior Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.01(b)), each Senior Secured Party hereby agrees that the Liens securing each Series of Senior Obligations on any Shared Collateral shall be of equal priority.
Appears in 2 contracts
Sources: Credit Agreement (Vine Resources Inc.), Credit Agreement (Vine Resources Inc.)
Priority of Claims. (a) Anything contained herein or in any of the Senior Second Priority Debt Documents to the contrary notwithstanding (but subject to Section 12.0613.06), if any Senior Second Priority Secured Party is taking action to enforce rights in respect of any Senior Second Priority Shared Collateral, or any distribution is made in respect of any Senior Second Priority Shared Collateral in any Insolvency or Liquidation Proceeding of the Borrower or any other Debtor or any Senior Second Priority Secured Party receives any payment pursuant to this Agreement with respect to any Senior Second Priority Shared Collateral or otherwise pursuant to Section 4.01, the proceeds of any sale, collection or other liquidation of any such Senior Second Priority Shared Collateral by any Senior Second Priority Secured Party or received by any Senior Second Priority Secured Party pursuant to this Agreement with respect to such Senior Second Priority Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the Senior Second Priority Debt Obligations are entitled (together the “Senior Second Priority 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 Second Priority Representative and each other Senior Second Priority Representative (in each case in its capacity as such) pursuant to the terms of any Senior Second Priority Debt Document, and second, subject to Section 12.0713.06, to the payment in full in cash of the Senior Second Priority Debt Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Second Priority Debt Obligations of a given Series in accordance with the terms of the applicable Senior Second Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower)Documents. Notwithstanding the foregoing, with respect to any Senior Second Priority Shared Collateral for which a third party (other than a Senior Second Priority Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of Senior Second Priority Debt Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of Senior Second Priority Debt Obligations (such third party, an a “Senior Second Priority Intervening Creditor”), the value of any Senior Second Priority Shared Collateral or Proceeds which are allocated to such Senior Second Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Second Priority Shared Collateral or proceeds to be distributed in respect of the Series of Senior Second Priority Debt Obligations with respect to which such Impairment exists.
(b) Notwithstanding anything contained herein or in any of the Senior Second Priority Debt Documents to the contrary (but subject to Section 12.0713.06), if any Senior Second Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Second Priority Collateral Proceeds, any such proceeds and distributions to which the Senior Second Priority Debt Obligations are entitled, shall be applied first, to the payment in full in cash of all fees, expenses and other amounts owing to each Senior Second Priority Representative (in its capacity as such) pursuant to the terms of any Senior Second Priority Debt Document, and second, subject to Section 12.0713.06, to the payment in full in cash of the Senior Second Priority Debt Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Second Priority Debt Obligations of a given Series in accordance with the terms of the applicable Senior Second Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower)Documents.
(c) It is acknowledged that the Senior Second Priority Debt Obligations of any Series may, subject to the limitations set forth in the then extant Senior Second Priority Debt 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 12.01(a13.01(a) or the provisions of this Agreement defining the relative rights of the Senior Second Priority Secured Parties of any Series.
Appears in 2 contracts
Sources: Intercreditor Agreement, Intercreditor Agreement (Garrett Motion Inc.)
Priority of Claims. (a) Anything contained herein or in any of the Senior Priority Debt ABL Documents or the LC Documents to the contrary notwithstanding (but subject to Section 12.06)notwithstanding, if an Event of Default has occurred and is continuing, and any Senior Priority Secured Party Collateral Agent is taking action to enforce rights in respect of any Senior Priority CollateralCollateral (whether in an Insolvency or Liquidation Proceeding or otherwise), or any distribution is made in respect of any Senior Priority Shared Collateral in any Insolvency or Liquidation Proceeding of the Borrower or any other Debtor or any Senior Priority Secured Party receives any payment pursuant to this Agreement with respect to any Senior Priority Shared Collateral or otherwise pursuant to Section 4.01Grantor, the proceeds of any sale, collection or other liquidation of any such Senior Priority Shared Collateral by any Senior Priority Secured Party or received by any Senior Priority Secured Party pursuant to this Agreement with respect to such Senior Priority Shared Collateral and proceeds of any such distribution Proceeds (subject, in the case of any such distribution, to the sentence immediately followingSection 2.06 hereof) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution, including adequate protection or similar payments under any Debtor Relief Law, being collectively referred to which the Senior Priority Obligations are entitled (together the as “Senior Collateral Proceeds”), ) shall be applied firstas follows:
(i) In the case of LC Priority Collateral, FIRST, to the payment in full of the LC Obligations in cash accordance with Section 9.04 of all fees, expenses the LC Credit Agreement and the other amounts owing to applicable provisions of the Designated Senior Priority Representative and each other Senior Priority Representative (in each case in its capacity as such) pursuant to the terms of any Senior Priority Debt DocumentLC Documents, and second, subject to Section 12.07SECOND, to the payment in full in cash of the Senior ABL Obligations in accordance with Section 2.4(b) of the ABL Credit Agreement and the other applicable provisions of the ABL Documents. If any ABL Obligations remain outstanding after the Discharge of the LC Obligations, all proceeds of the LC Priority Obligations of each Series on a ratable basis, with such proceeds to Collateral will be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower). Notwithstanding the foregoing, with respect to any Senior Priority Shared Collateral for which a third party (other than a Senior Priority Secured Party) has a lien or security interest that is junior in priority to the security interest repayment of any Series of Senior Priority Obligations but senior outstanding ABL Obligations.
(as determined by appropriate legal proceedings in ii) In the case of any dispute) to the security interest of any other Series of Senior ABL Priority Obligations (such third partyCollateral, an “Senior Priority Intervening Creditor”), the value of any Senior Priority Shared Collateral or Proceeds which are allocated to such Senior Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Priority Shared Collateral or proceeds to be distributed in respect of the Series of Senior Priority Obligations with respect to which such Impairment exists.
(b) Notwithstanding anything contained herein or in any of the Senior Priority Debt Documents to the contrary (but subject to Section 12.07), if any Senior Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Collateral Proceeds, any such proceeds and distributions to which the Senior Priority Obligations are entitled, shall be applied firstFIRST, to the payment in full of the ABL Obligations in cash accordance with Section 2.4(b) of all fees, expenses the ABL Credit Agreement and the other amounts owing to each Senior Priority Representative (in its capacity as such) pursuant to applicable provisions of the terms of any Senior Priority Debt DocumentABL Documents, and second, subject to Section 12.07SECOND, to the payment in full in cash of the Senior LC Obligations in accordance with Section 9.04 of the LC Credit Agreement and the other applicable provisions of the LC Documents. If any LC Obligations remain outstanding after the Discharge of the ABL Obligations, all proceeds of the ABL Priority Obligations of each Series on a ratable basis, with such proceeds to Collateral will be applied to the Senior Priority Obligations repayment of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower)any outstanding LC Obligations.
(cb) It is acknowledged that (i) the Senior Priority Obligations aggregate amount of any Series Senior Secured Obligations may, subject to the limitations set forth in the then extant Senior Priority Debt DocumentsABL Credit Agreement and the LC Credit Agreement, both as in effect on the date hereof, may 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 12.01(a2.01(a) or the provisions of this Agreement defining the relative rights of the Senior Priority ABL Secured Parties and the LC Secured Parties and (ii) the Senior Secured Obligations consists or may consist of indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed. The priorities provided for herein shall not be altered or otherwise affected by any Refinancing of either the Junior Secured Obligations (or any part thereof) or the Senior Secured Obligations (or any part thereof), by the release of any SeriesCollateral or of any guarantees for any Junior Secured Obligations or Senior Secured Obligations or by any action that any Representative or Secured Party may take or fail to take in respect of any Collateral.
(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the LC Obligations granted on the Collateral or of any Liens securing the ABL Obligations granted on the Collateral and notwithstanding any provision of the Uniform Commercial Code or other applicable legislation of any jurisdiction, or any other applicable law or the ABL Documents or the LC Documents, or any defect or deficiencies in or failure to perfect any such Liens or any other circumstance whatsoever (1) the Liens on the LC Priority Collateral securing the LC Obligations will rank senior to any Liens on the LC Priority Collateral securing the ABL Obligations and (2) the Liens on the ABL Priority Collateral securing the ABL Obligations will rank senior to any Liens on the ABL Priority Collateral securing the LC Obligations.
(d) For the avoidance of doubt, notwithstanding that Liens granted to the Foreign Collateral Agent, LC Collateral Agent, or ABL Collateral Agent on the Collateral governed by the laws of a jurisdiction located outside of the United States of America (the “Foreign Collateral”) may (A) have legally the same or different ranking due to mandatory legal provisions governing such Foreign Collateral; (B) have been granted or perfected in an order contrary to the contemplated ranking as set forth in this Agreement or (C) not have been granted to ABL Collateral Agent or LC Collateral Agent, the contractual ranking of the Liens on such Foreign Collateral shall be consistent with the ranking set forth in Section 2.1, and, subject to Article VI, all other terms and provisions of this Agreement with respect to Collateral shall be applicable to such Foreign Collateral.
Appears in 1 contract
Sources: Lc Credit Agreement and u.s. Security Agreement (Weatherford International PLC)
Priority of Claims. (a) Anything contained herein or in any of the Senior First-Priority Debt Lien Obligations Documents or the Second-Priority Lien Obligations Documents to the contrary notwithstanding (but subject to Section 12.06)notwithstanding, if an Event of Default has occurred and is continuing, and any Senior Priority Secured Party Collateral Agent is taking action to enforce rights in respect of any Senior Priority CollateralCollateral (whether in an Insolvency or Liquidation Proceeding or otherwise), or any distribution is made in respect of any Senior Priority Shared Collateral in any Insolvency or Liquidation Proceeding of the Borrower or any other Debtor or any Senior Priority Secured Party receives any payment pursuant to this Agreement with respect to any Senior Priority Shared Collateral or otherwise pursuant to Section 4.01Grantor, the proceeds of any sale, collection or other liquidation of any such Senior Priority Shared Collateral by any Senior Priority Secured Party or received by any Senior Priority Secured Party pursuant to this Agreement with respect to such Senior Priority Shared Collateral and proceeds of any such distribution Proceeds (subject, in the case of any such distribution, to the sentence immediately followingSection 2.06 hereof) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to which the Senior Priority Obligations are entitled (together the as “Senior Collateral Proceeds”), ) shall be applied firstas follows:
(i) In the case of the Term/Notes Priority Collateral, FIRST, to the payment in full in cash of all fees, expenses and other amounts owing to the Designated Senior Priority Representative and each other Senior Priority Representative (in each case in its capacity as such) pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash of the Senior Priority Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Priority Obligations of a given Series Applicable Second Lien Agent for distribution in accordance with the terms Pari Passu Second-Priority Intercreditor Agreement or any other applicable Second-Priority Lien Obligations Documents until payment in full of the applicable Senior all Second-Priority Debt Documents (providedLien Obligations, howeverand SECOND, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, Applicable First Lien Agent for distribution in accordance with the Priority Lien Intercreditor Agreement or any other applicable First-Priority Lien Obligations Documents until payment in full of all First-Priority Lien Obligations.
(howsoever describedii) from the Swiss Borrower). Notwithstanding the foregoing, with respect to any Senior Priority Shared Collateral for which a third party (other than a Senior Priority Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of Senior Priority Obligations but senior (as determined by appropriate legal proceedings in In the case of any dispute) the RBL Priority Collateral, FIRST, to the security interest of Applicable First Lien Agent for distribution in accordance with the Priority Lien Intercreditor Agreement or any other Series applicable First-Priority Lien Obligations Documents until payment in full of Senior all First-Priority Lien Obligations, and SECOND, to the Applicable Second Lien Agent for distribution in accordance with the Pari Passu Second-Priority Intercreditor Agreement or any other applicable Second-Priority Lien Obligations (such third party, an “Senior Documents until payment in full of all Second-Priority Intervening Creditor”), the value of any Senior Priority Shared Collateral or Proceeds which are allocated to such Senior Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Priority Shared Collateral or proceeds to be distributed in respect of the Series of Senior Priority Obligations with respect to which such Impairment existsLien Obligations.
(b) Notwithstanding anything contained herein or in any of the Senior Priority Debt Documents to the contrary (but subject to Section 12.07), if any Senior Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Collateral Proceeds, any such proceeds and distributions to which the Senior Priority Obligations are entitled, shall be applied first, to the payment in full in cash of all fees, expenses and other amounts owing to each Senior Priority Representative (in its capacity as such) pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash of the Senior Priority Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower).
(c) It is acknowledged that (i) the Senior Priority Obligations aggregate amount of any Series Senior Secured Obligations may, subject to the limitations set forth in the then extant Senior Priority Debt applicable RBL Facility Documents, Term Facility Documents, Other First-Priority Lien Obligations Documents and Other Second-Priority Lien Obligations Documents, as applicable, 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 12.01(a2.01(a) or the provisions of this Agreement defining the relative rights of the Senior First-Priority Lien Obligations Secured Parties vis-a-vis the Second-Priority Lien Obligations Secured Parties, and (ii) a portion of the Senior Secured Obligations consists or may consist of Indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed. The priorities provided for herein shall not be altered or otherwise affected by any Refinancing of either the Junior Secured Obligations (or any part thereof) or the Senior Secured Obligations (or any part thereof), by the release of any SeriesCollateral or of any guarantees for any Senior Secured Obligations or any Junior Secured Obligations or by any action that any Representative or Secured Party may take or fail to take in respect of any Collateral.
(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the First-Priority Lien Obligations granted on the Collateral or of any Liens securing the Second-Priority Lien Obligations granted on the Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Term Facility Documents, the RBL Facility Documents, any Other First-Priority Lien Obligations Document or any Other Second-Priority Lien Obligations Document, or any defect or deficiencies in, or failure to perfect, any such Liens or any other circumstance whatsoever: (i) (1) the Liens on the Term/Notes Priority Collateral securing the Second-Priority Lien Obligations will rank senior to any Liens on the Term/Notes Priority Collateral securing the First-Priority Lien Obligations, and (2) the Liens on the RBL Priority Collateral securing the First-Priority Lien Obligations will rank senior to any Liens on the RBL Priority Collateral securing the Second-Priority Lien Obligations;
Appears in 1 contract
Sources: Senior Lien Intercreditor Agreement (EP Energy LLC)
Priority of Claims. (a) Anything contained herein or in any of the Senior ABL Facility Documents or the First-Priority Debt Lien Obligations Documents to the contrary notwithstanding (but subject to Section 12.06)notwithstanding, if an Event of Default has occurred and is continuing, and any Senior Priority Secured Party Collateral Agent is taking action to enforce rights in respect of any Senior Priority CollateralCollateral (whether in an Insolvency or Liquidation Proceeding or otherwise), or any distribution is made in respect of any Senior Priority Shared Collateral in any Insolvency or Liquidation Proceeding of the Borrower or any other Debtor or any Senior Priority Secured Party receives any payment pursuant to this Agreement with respect to any Senior Priority Shared Collateral or otherwise pursuant to Section 4.01Grantor, the proceeds of any sale, collection or other liquidation of any such Senior Priority Shared Collateral by any Senior Priority Secured Party or received by any Senior Priority Secured Party pursuant to this Agreement with respect to such Senior Priority Shared Collateral and proceeds of any such distribution Proceeds (subject, in the case of any such distribution, to the sentence immediately followingSection 2.06 hereof) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to which the Senior Priority Obligations are entitled (together the as “Senior Collateral Proceeds”), ) shall be applied firstas follows:
(i) In the case of Notes Priority Collateral, FIRST, to the Applicable First-Lien Agent for distribution in accordance with the First-Lien Intercreditor Agreement and the First-Lien Security Documents, until payment in full of any First-Priority Lien Obligations secured by such Notes Priority Collateral, and SECOND, to the payment in full of the ABL Obligations in cash accordance with Section 4.02 of the ABL Facility Security Agreement. If any ABL Obligations remain outstanding after the Discharge of the First-Priority Lien Obligations, all fees, expenses and other amounts owing proceeds of the Notes Priority Collateral will be applied to the Designated Senior Priority Representative and each other Senior Priority Representative (in each case in its capacity as such) pursuant to the terms repayment of any Senior outstanding ABL Obligations.
(ii) In the case of ABL Priority Debt DocumentCollateral, and second, subject to Section 12.07FIRST, to the payment in full in cash of the Senior ABL Obligations in accordance with Section 4.02 of the ABL Facility Security Agreement, and SECOND, to the Applicable First-Lien Agent for distribution in accordance with the First-Lien Intercreditor Agreement and the First-Lien Security Documents. If any First-Priority Lien Obligations remain outstanding after the Discharge of each Series on a ratable basisthe ABL Obligations, with such all proceeds to of the ABL Priority Collateral will be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower). Notwithstanding the foregoing, with respect to any Senior Priority Shared Collateral for which a third party (other than a Senior Priority Secured Party) has a lien or security interest that is junior in priority to the security interest repayment of any Series of Senior outstanding 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 Senior Priority Obligations (such third party, an “Senior Priority Intervening Creditor”), the value of any Senior Priority Shared Collateral or Proceeds which are allocated to such Senior Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Priority Shared Collateral or proceeds to be distributed in respect of the Series of Senior Priority Obligations with respect to which such Impairment existsLien Obligations.
(b) Notwithstanding anything contained herein or in any of the Senior Priority Debt Documents to the contrary (but subject to Section 12.07), if any Senior Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Collateral Proceeds, any such proceeds and distributions to which the Senior Priority Obligations are entitled, shall be applied first, to the payment in full in cash of all fees, expenses and other amounts owing to each Senior Priority Representative (in its capacity as such) pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash of the Senior Priority Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower).
(c) It is acknowledged that (i) the Senior Priority Obligations aggregate amount of any Series Senior Secured Obligations may, subject to the limitations set forth in the then extant Senior ABL Facility, the Indenture and any Other First-Priority Debt Lien Obligations 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 12.01(a2.01(a) or the provisions of this Agreement defining the relative rights of the Senior Priority ABL Facility Secured Parties and the First-Lien Secured Parties, and (ii) a portion of the Senior Secured Obligations consists or may consist of indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed. The priorities provided for herein shall not be altered or otherwise affected by any Refinancing of either the Junior Secured Obligations (or any part thereof) or the Senior Secured Obligations (or any part thereof), by the release of any SeriesCollateral or of any guarantees for any Junior Secured Obligations or Senior Secured Obligations or by any action that any Representative or Secured Party may take or fail to take in respect of any Collateral.
(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the First-Priority Lien Obligations granted on the Collateral or of any Liens securing the ABL Obligations granted on the Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the ABL Facility Documents or the First-Priority Lien Obligations Documents, or any defect or deficiencies in or failure to perfect any such Liens or any other circumstance whatsoever:
(i) (1) the Liens on the Notes Priority Collateral securing the First-Priority Lien Obligations will rank senior to any Liens on such Notes Priority Collateral securing the ABL Obligations, and (2) the Liens on the ABL Priority Collateral securing the ABL Obligations will rank senior to any Liens on such ABL Priority Collateral securing the First-Priority Lien Obligations, and
(ii) The First-Lien Collateral Agent, on behalf of itself and the First-Lien Note Secured Parties, and each Other First-Priority Lien Obligations Collateral Agent, on behalf of itself and the applicable Other First-Priority Lien Obligations Secured Parties, each hereby agrees that the Liens of each such Collateral Agent shall be of equal priority; provided, however, that the foregoing shall not be construed to alter the relative rights or priorities of the various Series of First-Priority Lien Obligations against each other Series of First-Priority Lien Obligations, which rights and priorities shall be governed by the First-Priority Lien Obligations Documents and the First-Lien Intercreditor Agreement.
Appears in 1 contract
Sources: Abl Intercreditor Agreement (Momentive Specialty Chemicals Inc.)
Priority of Claims. (a) Anything contained herein or in any of the Senior Priority Debt Notes Documents or the LC Documents to the contrary notwithstanding (but subject to Section 12.06)notwithstanding, if an Event of Default has occurred and is continuing, and any Senior Priority Secured Party Collateral Agent is taking action to enforce rights in respect of any Senior Priority CollateralCollateral (whether in an Insolvency or Liquidation Proceeding or otherwise), or any distribution is made in respect of any Senior Priority Shared Collateral in any Insolvency or Liquidation Proceeding of the Borrower or any other Debtor or any Senior Priority Secured Party receives any payment pursuant to this Agreement with respect to any Senior Priority Shared Collateral or otherwise pursuant to Section 4.01Grantor, the proceeds of any sale, collection or other liquidation of any such Senior Priority Shared Collateral by any Senior Priority Secured Party or received by any Senior Priority Secured Party pursuant to this Agreement with respect to such Senior Priority Shared Collateral and proceeds of any such distribution Proceeds (subject, in the case of any such distribution, to the sentence immediately followingSection 2.06 hereof) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution, including adequate protection or similar payments under any Debtor Relief Law, being collectively referred to which the Senior Priority Obligations are entitled (together the as “Senior Collateral Proceeds”), ) shall be applied firstas follows:
(i) In the case of LC Priority Collateral, FIRST, to the payment in full of the LC Obligations (including the cash collateralization thereof) in cash accordance with Section 9.04 of all fees, expenses the LC Credit Agreement and the other amounts owing to applicable provisions of the Designated Senior Priority Representative and each other Senior Priority Representative (in each case in its capacity as such) pursuant to the terms of any Senior Priority Debt DocumentLC Documents, and second, subject to Section 12.07SECOND, to the payment in full in cash of the Senior Notes Obligations in accordance with Section 506 of the Notes Indenture and the other applicable provisions of the Notes Documents. If any Notes Obligations remain outstanding after the Discharge of the LC Obligations, all proceeds of the LC Priority Obligations of each Series on a ratable basis, with such proceeds to Collateral will be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower). Notwithstanding the foregoing, with respect to any Senior Priority Shared Collateral for which a third party (other than a Senior Priority Secured Party) has a lien or security interest that is junior in priority to the security interest repayment of any Series of Senior Priority Obligations but senior outstanding Notes Obligations.
(as determined by appropriate legal proceedings in ii) In the case of any dispute) to the security interest of any other Series of Senior Notes Priority Obligations (such third partyCollateral, an “Senior Priority Intervening Creditor”), the value of any Senior Priority Shared Collateral or Proceeds which are allocated to such Senior Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Priority Shared Collateral or proceeds to be distributed in respect of the Series of Senior Priority Obligations with respect to which such Impairment exists.
(b) Notwithstanding anything contained herein or in any of the Senior Priority Debt Documents to the contrary (but subject to Section 12.07), if any Senior Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Collateral Proceeds, any such proceeds and distributions to which the Senior Priority Obligations are entitled, shall be applied firstFIRST, to the payment in full of the Notes Obligations in cash accordance with Section 506 of all fees, expenses the Notes Indenture and the other amounts owing to each Senior Priority Representative (in its capacity as such) pursuant to applicable provisions of the terms of any Senior Priority Debt DocumentNotes Documents, and second, subject to Section 12.07SECOND, to the payment in full in cash of the Senior LC Obligations (including the cash collateralization thereof) in accordance with Section 9.04 of the LC Credit Agreement and the other applicable provisions of the LC Documents. If any LC Obligations remain outstanding after the Discharge of the Notes Obligations, all proceeds of the Notes Priority Obligations of each Series on a ratable basis, with such proceeds to Collateral will be applied to the Senior Priority Obligations repayment (including the cash collateralization thereof) of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower)any outstanding LC Obligations.
(cb) It is acknowledged that (i) the Senior Priority Obligations aggregate amount of any Series Senior Secured Obligations may, subject to the limitations set forth in the then extant Senior Priority Debt DocumentsNotes Indenture and the LC Credit Agreement, both as in effect on the date hereof, 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 12.01(a2.01(a) or the provisions of this Agreement defining the relative rights of the Senior Priority Notes Secured Parties and the LC Secured Parties and (ii) the Senior Secured Obligations consists or may consist of indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed. The priorities provided for herein shall not be altered or otherwise affected by any Refinancing of either the Junior Secured Obligations (or any part thereof) or the Senior Secured Obligations (or any part thereof), by the release of any SeriesCollateral or of any guarantees for any Junior Secured Obligations or Senior Secured Obligations or by any action that any Representative or Secured Party may take or fail to take in respect of any Collateral.
(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the LC Obligations granted on the Collateral or of any Liens securing the Notes Obligations granted on the Collateral and notwithstanding any provision of the Uniform Commercial Code or other applicable legislation of any jurisdiction, or any other applicable law or the Notes Documents or the LC Documents, or any defect or deficiencies in or failure to perfect any such Liens or any other circumstance whatsoever (1) the Liens on the LC Priority Collateral securing the LC Obligations will rank senior to any Liens on the LC Priority Collateral securing the Notes Obligations and (2) the Liens on the Notes Priority Collateral securing the Notes Obligations will rank senior to any Liens on the Notes Priority Collateral securing the LC Obligations.
(d) For the avoidance of doubt, notwithstanding that Liens granted to the Foreign Collateral Agent, LC Collateral Agent, or Notes Collateral Agent on the Collateral governed by the laws of a jurisdiction located outside of the United States of America (the “Foreign Collateral”) may (A) have legally the same or different ranking due to mandatory legal provisions governing such Foreign Collateral; (B) have been granted or perfected in an order contrary to the contemplated ranking as set forth in this Agreement or (C) not have been granted to Notes Collateral Agent or LC Collateral Agent, the contractual ranking of the Liens on such Foreign Collateral shall be consistent with the ranking set forth in Section 2.1, and, subject to Article VI, all other terms and provisions of this Agreement with respect to Collateral shall be applicable to such Foreign Collateral.
Appears in 1 contract
Sources: Intercreditor Agreement (Weatherford International PLC)
Priority of Claims. (a) Anything contained herein or in any of the Senior ABL Facility Documents or the First-Priority Debt Lien Obligations Documents to the contrary notwithstanding (but subject to Section 12.06)notwithstanding, if an Event of Default has occurred and is continuing, and any Senior Priority Secured Party Collateral Agent is taking action to enforce rights in respect of any Senior Priority CollateralCollateral (whether in an Insolvency or Liquidation Proceeding or otherwise), or any distribution is made in respect of any Senior Priority Shared Collateral in any Insolvency or Liquidation Proceeding of the Borrower or any other Debtor or any Senior Priority Secured Party receives any payment pursuant to this Agreement with respect to any Senior Priority Shared Collateral or otherwise pursuant to Section 4.01Grantor, the proceeds of any sale, collection or other liquidation of any such Senior Priority Shared Collateral by any Senior Priority Secured Party or received by any Senior Priority Secured Party pursuant to this Agreement with respect to such Senior Priority Shared Collateral and proceeds of any such distribution Proceeds (subject, in the case of any such distribution, to the sentence immediately followingSection 2.06 hereof) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to which the Senior Priority Obligations are entitled (together the as “Senior Collateral Proceeds”), ) shall be applied firstas follows:
(i) In the case of Notes Priority Collateral, FIRST, to the Applicable First-Lien Collateral Agent for distribution in accordance with the First-Priority Intercreditor Agreement until payment in full of any First-Priority Lien Obligations secured by such Notes Priority Collateral, and SECOND, to the payment in full of the ABL Obligations in cash accordance with Section [5.02] of the ABL Facility Security Agreement. If any ABL Obligations remain outstanding after the Discharge of the First-Priority Lien Obligations, all fees, expenses and other amounts owing proceeds of the Notes Priority Collateral will be applied to the Designated Senior Priority Representative and each other Senior Priority Representative (in each case in its capacity as such) pursuant to the terms repayment of any Senior outstanding ABL Obligations.
(ii) In the case of ABL Priority Debt DocumentCollateral, and second, subject to Section 12.07FIRST, to the payment in full in cash of the Senior ABL Obligations in accordance with Section [5.02] of the ABL Facility Security Agreement, and SECOND, to the Applicable First-Lien Collateral Agent for distribution in accordance with the First-Priority Intercreditor Agreement. If any First-Priority Lien Obligations remain outstanding after the Discharge of each Series on a ratable basisthe ABL Obligations, with such all proceeds to of the ABL Priority Collateral will be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower). Notwithstanding the foregoing, with respect to any Senior Priority Shared Collateral for which a third party (other than a Senior Priority Secured Party) has a lien or security interest that is junior in priority to the security interest repayment of any Series of Senior outstanding 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 Senior Priority Obligations (such third party, an “Senior Priority Intervening Creditor”), the value of any Senior Priority Shared Collateral or Proceeds which are allocated to such Senior Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Priority Shared Collateral or proceeds to be distributed in respect of the Series of Senior Priority Obligations with respect to which such Impairment existsLien Obligations.
(b) Notwithstanding anything contained herein or in any of the Senior Priority Debt Documents to the contrary (but subject to Section 12.07), if any Senior Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Collateral Proceeds, any such proceeds and distributions to which the Senior Priority Obligations are entitled, shall be applied first, to the payment in full in cash of all fees, expenses and other amounts owing to each Senior Priority Representative (in its capacity as such) pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash of the Senior Priority Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower)[Reserved.]
(c) It is acknowledged that (i) the Senior Priority Obligations aggregate amount of any Series Senior Secured Obligations may, subject to the limitations set forth in the then extant Senior ABL Facility, the First-Lien Revolving Facility, the Indenture and any Other First-Priority Debt Lien Obligations 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 12.01(a2.01(a) or the provisions of this Agreement defining the relative rights of the Senior Priority First-Lien Revolving Facility Secured Parties, the ABL Facility Secured Parties, the First-Lien Note Secured Parties and the Other First-Priority Lien Obligations Secured Parties, and (ii) a portion of the Senior Secured Obligations consists or may consist of Indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed. The priorities provided for herein shall not be altered or otherwise affected by any Refinancing of either the Junior Secured Obligations (or any part thereof) or the Senior Secured Obligations (or any part thereof), by the release of any SeriesCollateral or of any guarantees for any Senior Secured Obligations or by any action that any Representative or Secured Party may take or fail to take in respect of any Collateral.
(d) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the First-Priority Lien Obligations granted on the Collateral or of any Liens securing the ABL Obligations granted on the Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the First-Lien Revolving Facility Documents, the ABL Facility Documents, the First-Lien Note Documents, or any Other First-Priority Lien Obligations Documents or any defect or deficiencies in, or failure to perfect any such Liens or any other circumstance whatsoever:
(i) (1) the Liens on the Notes Priority Collateral securing First-Priority Lien Obligations will rank senior to any Liens on such Notes Priority Collateral securing ABL Obligations, and (2) the Liens on the ABL Priority Collateral securing ABL Obligations will rank senior to any Liens on such ABL Priority Collateral securing First-Priority Lien Obligations, and
(ii) the First-Lien Revolving Facility Collateral Agent, on behalf of itself and the First-Lien Revolving Facility Secured Parties, the First-Lien Notes Collateral Agent, on behalf of itself and the First-Lien Note Secured Parties, and each Other First-Priority Lien Obligations Collateral Agent, on behalf of itself and the applicable Other First-Priority Lien Obligations Secured Parties, each hereby agrees that the Liens of each such Collateral Agent shall be of equal priority; provided, however, that the foregoing shall not be construed to alter the relative rights or priorities of the various Series of First-Priority Lien Obligations Secured Parties against each other Series of First-Priority Lien Obligations which rights and priorities shall be governed by the First-Priority Intercreditor Agreement.
(e) For the avoidance of doubt, to the extent that as a result of any provision of this Agreement, Rule 3-16 of Regulation S-X under the Securities Act (or any successor or similar regulation) would require the filing with the SEC separate financial statements of any of the Company’s subsidiaries because such subsidiary’s capital stock or other securities would be deemed to secure the First-Lien Notes or any Other First-Priority Lien Obligations, then such provision shall be void and have no effect, but only to the extent necessary to not be subject to such requirement and only for so long as such requirement is in existence.
Appears in 1 contract
Sources: Indenture (Verso Paper Corp.)
Priority of Claims. (a) Anything contained herein or in any of the Senior Priority Debt ABL Facility Documents or the Non-ABL Documents to the contrary notwithstanding (but subject to Section 12.06)notwithstanding, if an Event of Default has occurred and is continuing, and any Senior Priority Secured Party Collateral Agent is taking action to enforce rights in respect of any Senior Priority CollateralCollateral (whether in an Insolvency or Liquidation Proceeding or otherwise), or any distribution is made in respect of any Senior Priority Shared Collateral in any Insolvency or Liquidation Proceeding of the Borrower or any other Debtor or any Senior Priority Secured Party receives any payment pursuant to this Agreement with respect to any Senior Priority Shared Collateral or otherwise pursuant to Section 4.01Grantor, the proceeds of any sale, collection or other liquidation of any such Senior Priority Shared Collateral by any Senior Priority Secured Party or received by any Senior Priority Secured Party pursuant to this Agreement with respect to such Senior Priority Shared Collateral and proceeds of any such distribution Proceeds (subject, in the case of any such distribution, to the sentence immediately followingSection 2.06 hereof) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to which the Senior Priority Obligations are entitled (together the as “Senior Collateral Proceeds”), ) shall be applied firstas follows:
(i) In the case of ABL Priority Collateral, FIRST, to the payment in full of the ABL Obligations in cash accordance with Section 4.02 of all feesthe ABL Facility Collateral Agreement, expenses and other amounts owing SECOND, to the Designated Senior First Lien/Second Lien Intercreditor Agent for distribution in accordance with the Non-ABL Documents. If any Non-ABL Obligations remain outstanding after the Discharge of the ABL Obligations, all proceeds of the ABL Priority Representative and each other Senior Priority Representative (in each case in its capacity as such) pursuant Collateral will be applied to the terms repayment of any Senior outstanding Non-ABL Obligations.
(ii) In the case of Non-ABL Priority Debt DocumentCollateral, FIRST, to the First Lien/Second Lien Intercreditor Agent for distribution in accordance with the Non-ABL Documents until payment in full of any Non-ABL Obligations secured by such Non-ABL Priority Collateral, and second, subject to Section 12.07SECOND, to the payment in full in cash of the Senior ABL Obligations in accordance with Section 4.02 of the ABL Facility Collateral Agreement. If any ABL Obligations remain outstanding after the Discharge of the Non-ABL Obligations, all proceeds of the Non-ABL Priority Obligations of each Series on a ratable basis, with such proceeds to Collateral will be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower). Notwithstanding the foregoing, with respect to any Senior Priority Shared Collateral for which a third party (other than a Senior Priority Secured Party) has a lien or security interest that is junior in priority to the security interest repayment of any Series of Senior 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 Senior Priority Obligations (such third party, an “Senior Priority Intervening Creditor”), the value of any Senior Priority Shared Collateral or Proceeds which are allocated to such Senior Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Priority Shared Collateral or proceeds to be distributed in respect of the Series of Senior Priority Obligations with respect to which such Impairment existsoutstanding ABL Obligations.
(b) Notwithstanding anything contained herein or in any of the Senior Priority Debt Documents to the contrary (but subject to Section 12.07), if any Senior Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Collateral Proceeds, any such proceeds and distributions to which the Senior Priority Obligations are entitled, shall be applied first, to the payment in full in cash of all fees, expenses and other amounts owing to each Senior Priority Representative (in its capacity as such) pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash of the Senior Priority Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower).
(c) It is acknowledged that (i) the Senior Priority Obligations aggregate amount of any Series Senior Obligations may, subject to the limitations set forth in the then extant Senior Priority Debt ABL Facility Documents and the Non-ABL 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 12.01(a2.01(a) or the provisions of this Agreement defining the relative rights of the ABL Facility Secured Parties and the Non-ABL Secured Parties, and (ii) a portion of the Senior Obligations consists or may consist of indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed. The priorities provided for herein shall not be altered or otherwise affected by any Refinancing of either the Junior Obligations (or any part thereof) or the Senior Obligations (or any part thereof), by the release of any Collateral or of any guarantees for any Senior Obligations or by any action that any Collateral Agent, Representative or Secured Party may take or fail to take in respect of any Collateral.
(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the Non-ABL Obligations granted on the Collateral or of any Liens securing the ABL Obligations granted on the Collateral (or any actual or alleged defect in any of the foregoing) and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the ABL Facility Documents and the Non-ABL Documents or any defect or deficiencies in, or failure to perfect any such Liens or any other circumstance whatsoever (including any non-perfection of any Lien purporting to secure the ABL obligations and/or the Non-ABL Obligations):
(1) the Liens on the Non-ABL Priority Collateral securing Non-ABL Obligations will rank senior to any Liens on such Non-ABL Priority Collateral securing ABL Obligations, and (2) the Liens on the ABL Priority Collateral securing ABL Obligations will rank senior to any Liens on such ABL Priority Collateral securing Non-ABL Obligations, and
(ii) The First-Priority Collateral Agent, on behalf of itself and the First-Priority Secured Parties Parties, and the Second-Priority Collateral Agent, on behalf of any Seriesitself and the Second-Priority Secured Parties, each hereby agrees that the priority of the Liens securing the Non-ABL Obligations shall be governed by the Non-ABL Documents; provided, however, that the foregoing shall not be construed to alter the relative rights or priorities of the various Series of Non-ABL Obligations against each other Series of Non-ABL Obligations, which rights and priorities shall be governed by the applicable Non-ABL Documents.
Appears in 1 contract
Sources: Abl Intercreditor Agreement (DS Services of America, Inc.)
Priority of Claims. (a) Anything contained herein or in any of the Senior Priority Debt Secured Credit Documents to the contrary notwithstanding (but subject to Section 12.061.01(b) of this Agreement), if any Senior Priority Secured Party an Event of Default has occurred and is continuing, and the Authorized Term Collateral Agent is taking action to enforce rights in respect of any Senior Priority Common Collateral, or any distribution is made in respect of any Senior Priority Shared Common Collateral in any Insolvency or Liquidation Proceeding Bankruptcy Case of the Borrower any Grantor or any other Debtor or any Senior Priority Term Secured Party receives any payment pursuant to any intercreditor agreement (other than this Agreement Agreement) with respect to any Senior Priority Shared Collateral or otherwise pursuant to Section 4.01Common Collateral, the proceeds of any sale, collection or other liquidation of any such Senior Priority Shared Common Collateral by any Senior Priority Term Secured Party or received by any Senior Priority Secured Party Collateral Agent pursuant to this Agreement any such intercreditor agreement with respect to such Senior Priority Shared Common Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the Senior Priority Term Obligations are entitled under any intercreditor agreement (together the 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 “Senior Collateral Proceeds”), shall be applied firstas follows: FIRST, to the payment in full in cash 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 amounts owing to Term Security Document on behalf of the Designated Senior Priority Representative Grantors, if any, and each any other Senior Priority Representative (reasonable costs or expenses incurred in each case in its capacity as such) pursuant to connection with the terms exercise of any Senior Priority Debt right or remedy hereunder or under any other Term Security Document, and second, subject to Section 12.07; 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 full connection with such collection or sale or otherwise in cash connection with this Agreement, or any other Term Security Document or any of the Senior Priority 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 of each Series on a ratable basis, with such proceeds (the amounts so applied to be applied to distributed pro rata among the Senior Priority Obligations of a given Series Term Secured Parties in accordance with the terms amounts of the applicable Senior Priority Debt Documents (providedTerm Obligations owed to them on the date of any such distribution); FOURTH, howeverafter payment in full of all Term Obligations, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from ABL Agent, to be applied in accordance with Section 14 of the ABL Security Agreement (or, if a recoveryReplacement ABL Agreement is in effect, distribution 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 payment (howsoever described) from the Swiss Borrower)their successors or assigns, or as a court of competent jurisdiction may otherwise direct. Notwithstanding the foregoing, with respect to any Senior Priority Shared Common Collateral for which a third party (other than a Senior Priority Term Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of Senior Priority 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 Senior Priority Term Obligations (such third party, party an “Senior Priority Intervening Creditor”), the value of any Senior Priority Shared Common Collateral or Proceeds which are allocated to such Senior Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Priority Shared Common Collateral or proceeds Proceeds to be distributed in respect of the Series of Senior Priority Term Obligations with respect to which such Impairment exists.
(b) Notwithstanding anything contained herein or in any of the Senior Priority Debt Documents to the contrary (but subject to Section 12.07), if any Senior Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Collateral Proceeds, any such proceeds and distributions to which the Senior Priority Obligations are entitled, shall be applied first, to the payment in full in cash of all fees, expenses and other amounts owing to each Senior Priority Representative (in its capacity as such) pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash of the Senior Priority Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, The Term Secured Parties hereby acknowledge that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower).
(c) It is acknowledged that the Senior Priority Term Obligations of any Series may, subject to the any limitations set forth in the then extant Senior Priority Debt 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 12.01(a2.01(a) or the provisions of this Agreement defining the relative rights of the Senior Priority Term 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 Term Obligations granted on the Common Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the Term Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.01(b)), each Term Secured Party hereby agrees that the Liens securing each Series of Term Obligations on any Common Collateral shall be of equal priority.
Appears in 1 contract
Sources: Term Intercreditor Agreement (Tower Automotive, LLC)
Priority of Claims. (a) Anything contained herein or in any of the Senior Priority Debt Parity Lien Documents to the contrary notwithstanding (but subject to Section 12.06)notwithstanding, if any Senior Priority Secured Party an Event of Default has occurred and is continuing, and the Applicable Collateral Agent is taking action to enforce rights in respect of any Senior Priority Shared Collateral, or any distribution is made in respect of any Senior Priority Shared Collateral in any Insolvency or Liquidation Proceeding Bankruptcy Case of the Borrower any Grantor or any other Debtor or any Senior Priority Secured Party Parity Lien Claimholder receives any payment pursuant to any intercreditor agreement (other than this Agreement Agreement) or otherwise with respect to any Senior Priority Shared Collateral or otherwise pursuant to Section 4.01Collateral, the proceeds of any sale, collection or other liquidation of any such Senior Priority Shared Collateral received by any Senior Priority Secured Party Parity Lien Claimholder or received by the Applicable Collateral Agent or any Senior Priority Secured Party Parity Lien Claimholder pursuant to this Agreement any such intercreditor agreement or otherwise with respect to such Senior Priority Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately followingfollowing clause THIRD below) to which the Senior Priority Parity Lien Obligations are entitled under any intercreditor agreement (together other than this Agreement) or otherwise (all proceeds of any sale, collection or other liquidation of any Collateral comprising Shared Collateral and all proceeds of any such distribution and any proceeds of any insurance covering the Shared Collateral received by the Applicable Collateral Agent and not returned to any Grantor under any Parity Lien Document being collectively referred to as “Senior Collateral Proceeds”), shall be applied firstby the Applicable Collateral Agent in the following order:
(i) FIRST, to the payment in full in cash of all fees, expenses and other amounts owing to the Designated Senior Priority Representative and each other Senior Priority Representative Collateral Agent (in each case in its capacity as such) pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash of the Senior Priority Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower). Notwithstanding the foregoing, with respect to any Senior Priority Shared Collateral for which a third party (other than a Senior Priority Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of Senior 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 Senior Priority Obligations (such third party, an “Senior Priority Intervening Creditor”), the value of any Senior Priority Shared Collateral or Proceeds which are allocated to such Senior Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Priority Shared Collateral or proceeds to be distributed in respect of the Series of Senior Priority Obligations with respect to which such Impairment exists.
(b) Notwithstanding anything contained herein or in any of the Senior Priority Debt Documents to the contrary (but subject to Section 12.07), if any Senior Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Collateral Proceeds, any such proceeds and distributions to which the Senior Priority Obligations are entitled, shall be applied first, to the payment in full in cash of all fees, expenses and other amounts owing to each Senior Priority Representative (in its capacity as such) secured by such Shared Collateral, including all court costs and the reasonable fees and expenses of its agents and legal counsel, and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Parity Lien Document and all fees and indemnities owing to such Collateral Agents and Representatives, ratably to each such Collateral Agent and Representative in accordance with the amounts payable to it pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07this clause FIRST;
(ii) SECOND, to the extent Proceeds remain after the application pursuant to preceding clause (i), to each Representative for the payment in full in cash of the Senior Priority other Parity Lien Obligations of each Series on a ratable basissecured by such Shared Collateral and, with if the amount of such proceeds Proceeds are insufficient to pay in full the Parity Lien Obligations of each Series so secured then such Proceeds shall be applied allocated among the Representatives of each Series secured by such Shared Collateral pro rata according to the Senior Priority amounts of such Parity Lien Obligations of a given Series owing to each such respective Representative and the other Parity Lien Claimholders represented by it for distribution by such Representative in accordance with its respective Parity Lien Documents; and
(iii) THIRD, any balance of such Proceeds remaining after the terms of application pursuant to preceding clauses (i) and (ii), to the applicable Senior Priority Debt Documents (providedGrantors, howevertheir successors or assigns from time to time, that the TLB Proceeds Loan Creditor shall only or to whomever may be lawfully entitled to receive the same. If, despite the provisions of this Section 2.1(a), any Parity Lien Claimholder shall receive any payment or other recovery in excess of its portion of payments on account of the Parity Lien Obligations to which it is then entitled in accordance with this Section 2.1(a), such proceeds (on a ratable basis) to Parity Lien Claimholder shall hold such payment or recovery in trust for the extent such proceeds result directly from a recovery, benefit of all Parity Lien Claimholders for distribution or payment (howsoever described) from the Swiss Borrowerin accordance with this Section 2.1(a).
(cb) It is acknowledged that the Senior Priority Parity Lien Obligations of any Series may, subject to the limitations set forth in the then extant Senior Priority Debt Documentsthen-existing Parity Lien Documents and subject to any limitations set forth in this Agreement, 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 12.01(a2.1(a) or the provisions of this Agreement defining the relative rights of the Senior Priority Secured Parties Parity Lien Claimholders of any Series.
(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Parity Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Parity Lien Documents or any defect or deficiencies in, or failure to perfect, the Liens securing the Parity Lien Obligations of any Series or any other circumstance whatsoever, each Parity Lien Claimholder hereby agrees that the Liens securing each Series of Parity Lien Obligations on any Shared Collateral shall be of equal priority.
Appears in 1 contract
Sources: Indenture (Evraz North America PLC)
Priority of Claims. (a) Anything contained herein or in any of the Senior Priority Debt Parity Lien Documents to the contrary notwithstanding (but subject to Section 12.06)notwithstanding, if an Event of Default under any Senior Priority Secured Party Parity Lien Document has occurred and is continuing, and the Applicable Collateral Agent is taking action to enforce rights in respect of any Senior Priority Shared Collateral, or any distribution is made in respect of any Senior Priority Shared Collateral in any Insolvency or Liquidation Proceeding Bankruptcy Case of the Borrower any Grantor or any other Debtor or any Senior Priority Secured Party Parity Lien Claimholder receives any payment pursuant to any intercreditor agreement (other than this Agreement Agreement) or otherwise with respect to any Senior Priority Shared Collateral or otherwise pursuant to Section 4.01Collateral, the proceeds of any sale, collection or other liquidation of any such Senior Priority Shared Collateral received by any Senior Priority Secured Party Parity Lien Claimholder or received by the Applicable Collateral Agent or any Senior Priority Secured Party Parity Lien Claimholder pursuant to this Agreement any such intercreditor agreement or otherwise with respect to such Senior Priority Shared Collateral and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately followingfollowing clause THIRD below) to which the Senior Priority Parity Lien Obligations are entitled under any intercreditor agreement (together other than this Agreement) or otherwise (all proceeds of any sale, collection or other liquidation of any Collateral comprising either Shared Collateral and all proceeds of any such distribution and any proceeds of any insurance covering the Shared Collateral received by the Applicable Collateral Agent and not returned to any Grantor under any Parity Lien Document being collectively referred to as “Senior Collateral Proceeds”), shall be applied firstby the Applicable Collateral Agent, subject to Article III, in the following order:
(i) FIRST, to the payment in full in cash of all fees, expenses and other amounts owing to the Designated Senior Priority Representative and each other Senior Priority Representative Collateral Agent (in each case in its capacity as such) pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash of the Senior Priority Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower). Notwithstanding the foregoing, with respect to any Senior Priority Shared Collateral for which a third party (other than a Senior Priority Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of Senior 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 Senior Priority Obligations (such third party, an “Senior Priority Intervening Creditor”), the value of any Senior Priority Shared Collateral or Proceeds which are allocated to such Senior Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Priority Shared Collateral or proceeds to be distributed in respect of the Series of Senior Priority Obligations with respect to which such Impairment exists.
(b) Notwithstanding anything contained herein or in any of the Senior Priority Debt Documents to the contrary (but subject to Section 12.07), if any Senior Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Collateral Proceeds, any such proceeds and distributions to which the Senior Priority Obligations are entitled, shall be applied first, to the payment in full in cash of all fees, expenses and other amounts owing to each Senior Priority Representative (in its capacity as such) secured by such Shared Collateral, including all court costs and the reasonable fees and expenses of its agents and legal counsel, and any other reasonable costs or expenses Incurred in connection with the exercise of any right or remedy hereunder or under any other Parity Lien Document and all fees, expenses and indemnities owing to such Collateral Agents and Representatives under the relevant Parity Lien Documents, ratably to each such Collateral Agent and Representative in accordance with the amounts payable to it pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07this clause (i);
(ii) SECOND, to the extent Proceeds remain after the application pursuant to preceding clause (i), to each Representative for the payment in full in cash of the Senior Priority other Parity Lien Obligations of each Series on a ratable basissecured by such Shared Collateral and, with if the amount of such proceeds Proceeds are insufficient to pay in full the Parity Lien Obligations of each Series so secured then such Proceeds shall be applied allocated among the Representatives of each Series secured by such Shared Collateral, pro rata according to the Senior Priority amounts of such Parity Lien Obligations of a given Series owing to each such respective Representative and the other Parity Lien Claimholders represented by it for distribution by such Representative in accordance with its respective Parity Lien Documents; and
(iii) THIRD, any balance of such Proceeds remaining after the terms of application pursuant to preceding clauses (i) and (ii), to the applicable Senior Priority Debt Documents (providedGrantors, howevertheir successors or assigns from time to time, that the TLB Proceeds Loan Creditor shall only or to whomever may be lawfully entitled to receive the same. If, despite the provisions of this Section 2.1(a), any Parity Lien Claimholder shall receive any payment or other recovery in excess of its portion of payments on account of the Parity Lien Obligations to which it is then entitled in accordance with this Section 2.1(a), such proceeds (on a ratable basis) to Parity Lien Claimholder shall hold such payment or recovery in trust for the extent such proceeds result directly from a recovery, benefit of all Parity Lien Claimholders for distribution or payment (howsoever described) from the Swiss Borrowerin accordance with this Section 2.1(a).
(cb) It is acknowledged that the Senior Priority Parity Lien Obligations of any Series may, subject to the limitations set forth in the then extant Senior Priority Debt Documentsthen-existing Parity Lien Documents and subject to any limitations set forth in this Agreement, 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 12.01(a2.1(a) or the provisions of this Agreement defining the relative rights of the Senior Priority Secured Parties Parity Lien Claimholders of any Series.
(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Parity Lien Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Parity Lien Documents or any defect or deficiencies in, or failure to perfect, the Liens securing the Parity Lien Obligations of any Series or any other circumstance whatsoever, each Parity Lien Claimholder hereby agrees that the Liens securing each Series of Parity Lien Obligations on any Shared Collateral shall be of equal priority.
Appears in 1 contract
Sources: Indenture (Urban One, Inc.)
Priority of Claims. (a) Anything contained herein or in any of the Senior ABL Facility Documents or the First-Priority Debt Lien Obligations Documents to the contrary notwithstanding (but subject to Section 12.06)notwithstanding, if an Event of Default has occurred and is continuing, and any Senior Priority Secured Party Collateral Agent is taking action to enforce rights in respect of any Senior Priority CollateralCollateral (whether in an Insolvency or Liquidation Proceeding or otherwise), or any distribution is made in respect of any Senior Priority Shared Collateral in any Insolvency or Liquidation Proceeding of the Borrower or any other Debtor or any Senior Priority Secured Party receives any payment pursuant to this Agreement with respect to any Senior Priority Shared Collateral or otherwise pursuant to Section 4.01Grantor, the proceeds of any sale, collection or other liquidation of any such Senior Priority Shared Collateral by any Senior Priority Secured Party or received by any Senior Priority Secured Party pursuant to this Agreement with respect to such Senior Priority Shared Collateral and proceeds of any such distribution Proceeds (subject, in the case of any such distribution, to the sentence immediately followingSection 2.06 hereof) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to which the Senior Priority Obligations are entitled (together the as “Senior Collateral Proceeds”), ) shall be applied firstas follows:
(i) In the case of Notes Priority Collateral, FIRST, to the First-Lien Collateral Agent for distribution in accordance with the First-Priority Lien Obligations Documents (including any intercreditor agreements with respect thereto), until payment in full of any First-Priority Lien Obligations secured by such Notes Priority Collateral, and SECOND, to the payment in full of the ABL Obligations in cash accordance with Section 4.02 of the ABL Facility Security Agreement and the other applicable provisions of the ABL Facility Security Documents. If any ABL Obligations remain outstanding after the Discharge of the First-Priority Lien Obligations, all fees, expenses and other amounts owing proceeds of the Notes Priority Collateral will be applied to the Designated Senior Priority Representative and each other Senior Priority Representative (in each case in its capacity as such) pursuant to the terms repayment of any Senior outstanding ABL Obligations.
(ii) In the case of ABL Priority Debt DocumentCollateral, and second, subject to Section 12.07FIRST, to the payment in full in cash of the Senior ABL Obligations in accordance with Section 4.02 of the ABL Facility Security Agreement and the other applicable provisions of the ABL Facility Security Documents, and SECOND, to the First-Lien Collateral Agent for distribution in accordance with the First-Priority Lien Obligations Documents (including any intercreditor agreements with respect thereto). If any First-Priority Lien Obligations remain outstanding after the Discharge of each Series on a ratable basisthe ABL Obligations, with such all proceeds to of the ABL Priority Collateral will be applied to the Senior repayment of any outstanding First-Priority Lien Obligations. Following the Discharge of the First-Priority Lien Obligations and the Discharge of a given Series the ABL Obligations, all remaining Proceeds shall be applied in accordance with the terms of the any applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower). Notwithstanding the foregoing, with respect to any Senior Priority Shared Collateral for which a third party (other than a Senior Priority Secured Party) has a lien or security interest that is junior Junior Lien Intercreditor Agreement then in priority to the security interest of any Series of Senior 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 Senior Priority Obligations (such third party, an “Senior Priority Intervening Creditor”), the value of any Senior Priority Shared Collateral or Proceeds which are allocated to such Senior Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Priority Shared Collateral or proceeds to be distributed in respect of the Series of Senior Priority Obligations with respect to which such Impairment existseffect.
(b) Notwithstanding anything contained herein or in any of the Senior Priority Debt Documents to the contrary (but subject to Section 12.07), if any Senior Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Collateral Proceeds, any such proceeds and distributions to which the Senior Priority Obligations are entitled, shall be applied first, to the payment in full in cash of all fees, expenses and other amounts owing to each Senior Priority Representative (in its capacity as such) pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash of the Senior Priority Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower).
(c) It is acknowledged that (i) the Senior Priority Obligations aggregate amount of any Series Senior Secured Obligations may, subject to the limitations set forth in the then extant Senior ABL Facility, the Indenture and any Other First-Priority Debt Lien Obligations 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 12.01(a2.01(a) or the provisions of this Agreement defining the relative rights of the Senior Priority ABL Facility Secured Parties and the First-Lien Secured Parties, and (ii) a portion of the Senior Secured Obligations consists or may consist of indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed. The priorities provided for herein shall not be altered or otherwise affected by any Refinancing of either the Junior Secured Obligations (or any part thereof) or the Senior Secured Obligations (or any part thereof), by the release of any SeriesCollateral or of any guarantees for any Junior Secured Obligations or Senior Secured Obligations or by any action that any Representative or Secured Party may take or fail to take in respect of any Collateral.
(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the First-Priority Lien Obligations granted on the Collateral or of any Liens securing the ABL Obligations granted on the Collateral and notwithstanding any provision of the Uniform Commercial Code or other applicable legislation of any jurisdiction, or any other applicable law or the ABL Facility Documents or the First-Priority Lien Obligations Documents, or any defect or deficiencies in or failure to perfect any such Liens or any other circumstance whatsoever:
(i) (1) the Liens on the Notes Priority Collateral securing the First-Priority Lien Obligations will rank senior to any Liens on such Notes Priority Collateral securing the ABL Obligations, and (2) the Liens on the ABL Priority Collateral securing the ABL Obligations will rank senior to any Liens on such ABL Priority Collateral securing the First-Priority Lien Obligations, and
(ii) the First-Lien Collateral Agent, on behalf of itself and the First-Lien Secured Parties, and each Other First-Priority Lien Obligations Collateral Agent, on behalf of itself and the applicable Other First-Priority Lien Obligations Secured Parties, each hereby agrees that the Liens of each such Collateral Agent on which both of such Collateral Agents have a Lien shall be of equal priority; provided, however, that the foregoing shall not be construed to alter the relative rights or priorities of the various Series of First-Priority Lien Obligations against each other Series of First-Priority Lien Obligations, which rights and priorities shall be governed by the First-Priority Lien Obligations Documents (including any intercreditor agreements with respect thereto), nor shall the foregoing be construed to grant, or otherwise provide the benefits of, a Lien on any Collateral in favor of a Secured Party that does not hold any Obligations that are secured by such Collateral.
Appears in 1 contract
Sources: Abl Intercreditor Agreement (Momentive Performance Materials Inc.)
Priority of Claims. (a) Anything contained herein or in any of the Senior ABL Facility Documents or the First-Priority Debt Lien Obligations Documents to the contrary notwithstanding (but subject to Section 12.06)notwithstanding, if an Event of Default has occurred and is continuing, and any Senior Priority Secured Party Collateral Agent is taking action to enforce rights in respect of any Senior Priority CollateralCollateral (whether in an Insolvency or Liquidation Proceeding or otherwise), or any distribution is made in respect of any Senior Priority Shared Collateral in any Insolvency or Liquidation Proceeding of the Borrower or any other Debtor or any Senior Priority Secured Party receives any payment pursuant to this Agreement with respect to any Senior Priority Shared Collateral or otherwise pursuant to Section 4.01Grantor, the proceeds of any sale, collection or other liquidation of any such Senior Priority Shared Collateral by any Senior Priority Secured Party or received by any Senior Priority Secured Party pursuant to this Agreement with respect to such Senior Priority Shared Collateral and proceeds of any such distribution Proceeds (subject, in the case of any such distribution, to the sentence immediately followingSection 2.06 hereof) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to which the Senior Priority Obligations are entitled (together the as “Senior Collateral Proceeds”), ) shall be applied firstas follows:
(i) In the case of Notes Priority Collateral, FIRST, to the Applicable First-Lien Collateral Agent for distribution in accordance with the First-Priority Intercreditor Agreement until payment in full of any First-Priority Lien Obligations secured by such Notes Priority Collateral, and SECOND, to the payment in full of the ABL Obligations in cash accordance with Section 5.02 of the ABL Facility Security Agreement. If any ABL Obligations remain outstanding after the Discharge of the First-Priority Lien Obligations, all fees, expenses and other amounts owing proceeds of the Notes Priority Collateral will be applied to the Designated Senior Priority Representative and each other Senior Priority Representative (in each case in its capacity as such) pursuant to the terms repayment of any Senior outstanding ABL Obligations.
(ii) In the case of ABL Priority Debt DocumentCollateral, and second, subject to Section 12.07FIRST, to the payment in full in cash of the Senior ABL Obligations in accordance with Section 5.02 of the ABL Facility Security Agreement, and SECOND, to the Applicable First-Lien Collateral Agent for distribution in accordance with the First-Priority Intercreditor Agreement. If any First-Priority Lien Obligations remain outstanding after the Discharge of each Series on a ratable basisthe ABL Obligations, with such all proceeds to of the ABL Priority Collateral will be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower). Notwithstanding the foregoing, with respect to any Senior Priority Shared Collateral for which a third party (other than a Senior Priority Secured Party) has a lien or security interest that is junior in priority to the security interest repayment of any Series of Senior outstanding 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 Senior Priority Obligations (such third party, an “Senior Priority Intervening Creditor”), the value of any Senior Priority Shared Collateral or Proceeds which are allocated to such Senior Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Priority Shared Collateral or proceeds to be distributed in respect of the Series of Senior Priority Obligations with respect to which such Impairment existsLien Obligations.
(b) Notwithstanding anything contained herein or in any of the Senior Priority Debt Documents to the contrary (but subject to Section 12.07), if any Senior Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Collateral Proceeds, any such proceeds and distributions to which the Senior Priority Obligations are entitled, shall be applied first, to the payment in full in cash of all fees, expenses and other amounts owing to each Senior Priority Representative (in its capacity as such) pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash of the Senior Priority Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower)[Reserved.]
(c) It is acknowledged that (i) the Senior Priority Obligations aggregate amount of any Series Senior Secured Obligations may, subject to the limitations set forth in the then extant Senior ABL Facility, the First-Lien Revolving Facility, the Indenture and any Other First-Priority Debt Lien Obligations 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 12.01(a2.01(a) or the provisions of this Agreement defining the relative rights of the Senior Priority First-Lien Revolving Facility Secured Parties, the ABL Facility Secured Parties, the First-Lien Note Secured Parties and the Other First-Priority Lien Obligations Secured Parties, and (ii) a portion of the Senior Secured Obligations consists or may consist of Indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed. The priorities provided for herein shall not be altered or otherwise affected by any Refinancing of either the Junior Secured Obligations (or any part thereof) or the Senior Secured Obligations (or any part thereof), by the release of any SeriesCollateral or of any guarantees for any Senior Secured Obligations or by any action that any Representative or Secured Party may take or fail to take in respect of any Collateral.
(d) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the First-Priority Lien Obligations granted on the Collateral or of any Liens securing the ABL Obligations granted on the Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the First-Lien Revolving Facility Documents, the ABL Facility Documents, the First-Lien Note Documents, or any Other First-Priority Lien Obligations Documents or any defect or deficiencies in, or failure to perfect any such Liens or any other circumstance whatsoever:
(i) (1) the Liens on the Notes Priority Collateral securing First-Priority Lien Obligations will rank senior to any Liens on such Notes Priority Collateral securing ABL Obligations, and (2) the Liens on the ABL Priority Collateral securing ABL Obligations will rank senior to any Liens on such ABL Priority Collateral securing First-Priority Lien Obligations, and
(ii) the First-Lien Revolving Facility Collateral Agent, on behalf of itself and the First-Lien Revolving Facility Secured Parties, the First-Lien Notes Collateral Agent, on behalf of itself and the First-Lien Note Secured Parties, and each Other First-Priority Lien Obligations Collateral Agent, on behalf of itself and the applicable Other First-Priority Lien Obligations Secured Parties, each hereby agrees that the Liens of each such Collateral Agent shall be of equal priority; provided, however, that the foregoing shall not be construed to alter the relative rights or priorities of the various Series of First-Priority Lien Obligations Secured Parties against each other Series of First-Priority Lien Obligations which rights and priorities shall be governed by the First-Priority Intercreditor Agreement.
(e) For the avoidance of doubt, to the extent that as a result of any provision of this Agreement, Rule 3-16 of Regulation S-X under the Securities Act (or any successor or similar regulation) would require the filing with the SEC separate financial statements of any of the Company’s subsidiaries because such subsidiary’s capital stock or other securities would be deemed to secure the First-Lien Notes or any Other First-Priority Lien Obligations, then such provision shall be void and have no effect, but only to the extent necessary to not be subject to such requirement and only for so long as such requirement is in existence.
Appears in 1 contract
Sources: Senior Lien Intercreditor Agreement (Verso Quinnesec REP Holding Inc.)
Priority of Claims. (a) Anything contained herein or in any of the Senior Priority Debt Pari Passu Documents to the contrary notwithstanding (but subject to Section 12.06SECTION 1.01(b) of this Agreement), if whether or not any Senior Priority Secured Party is taking action to enforce rights Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor, after the occurrence and during the continuance of one or more Events of Default, any Common Collateral or any proceeds thereof received in respect connection with the sale or other disposition of, or collection on, any Common Collateral upon the exercise of remedies under the Pari Passu Security Documents by the Revolving Credit Facility Collateral Agent, any payment on account of any Senior Priority CollateralCommon Collateral received as a distribution or recovery in any Insolvency or Liquidation Proceeding, any Subordination Document Distribution or collection on any Subordination Document Distribution received upon the exercise of remedies under the Pari Passu Subordination Documents by the Revolving Credit Facility Collateral Agent, and any payment or distribution is made in respect on account of any Senior Priority Shared Collateral Pari Passu Subordination Document received as a distribution or recovery in any Insolvency or Liquidation Proceeding (all of the Borrower foregoing being collectively referred to as “Proceeds”), in each case, shall be 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 Debtor Pari Passu Security Document on behalf of Grantors and (iv) any other costs or any Senior Priority Secured Party receives any payment pursuant to this Agreement expenses incurred in connection with respect to any Senior Priority Shared Collateral the administration of or otherwise pursuant to Section 4.01, the proceeds exercise of any sale, collection right or remedy hereunder or under any other liquidation of any such Senior Priority Shared Collateral by any Senior Priority Secured Party Pari Passu Security Document or received by any Senior Priority Secured Party pursuant to this Agreement with respect to such Senior Priority Shared Collateral and proceeds of any such distribution (subjectPari Passu Subordination Document, in each case of the case 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, to the sentence immediately following) to which the Senior Priority Obligations are entitled (together the “Senior Collateral Proceeds”), shall be applied first; and THIRD, to the payment in full in cash of all fees, expenses and other Term Loan Excess Principal (the amounts owing to the Designated Senior Priority Representative and each other Senior Priority Representative (in each case in its capacity as such) pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash of the Senior Priority Obligations of each Series on a ratable basis, with such proceeds so applied to be applied to distributed pro rata among the Senior Priority Obligations of a given Series Term Loan Secured Parties in accordance with the terms amounts of the applicable Senior Priority Debt Documents (providedExcess Term Loan Principal owed to them on the date of any such distribution); and FOURTH, howeverafter payment in full of all Pari Passu Lien Obligations, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from Grantors or their successors or assigns, or as a recovery, distribution or payment (howsoever described) from the Swiss Borrower)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 Senior Priority Shared Common Collateral for which a third party (other than a Senior Priority Pari Passu Secured PartyParty and, without limiting the foregoing, after taking into account the effect of any applicable intercreditor agreements) has a lien or security interest Lien that is junior in priority to the security interest Lien of any Series of Senior Priority Pari Passu Lien Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest Lien of any other Series of Senior Priority Pari Passu Lien Obligations (such third party, an “Senior Priority Intervening Creditor”), the value of any Senior Priority Shared Common Collateral or Proceeds which are allocated to such Senior Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Priority Shared Common Collateral or proceeds Proceeds in respect of Common Collateral to be distributed in respect of the Series of Senior Priority Pari Passu Lien Obligations with respect to which such Impairment exists.
(b) Notwithstanding anything contained herein or in any of the Senior Priority Debt Documents to the contrary (but subject to Section 12.07), if any Senior Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Collateral Proceeds, any such proceeds and distributions to which the Senior Priority Obligations are entitled, shall be applied first, to the payment in full in cash of all fees, expenses and other amounts owing to each Senior Priority Representative (in its capacity as such) pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash of the Senior Priority Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, The Pari Passu Secured Parties hereby acknowledge that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower).
(c) It is acknowledged that the Senior Priority Pari Passu Lien Obligations of any Series may, subject to the treatment of Term Loan Excess Principal and any limitations set forth in the then extant Senior Priority Debt DocumentsSECTION 2.04 of this Agreement, 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 12.01(aSECTION 2.01(a) or the provisions of this Agreement defining the relative rights of the Senior Priority Pari Passu Secured Parties of any Series; provided that nothing herein shall limit the effects of such action, including any breach caused thereby, under any other Series of Pari Passu Documents.
(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of Pari Passu Lien Obligations granted on the Common Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Pari Passu Documents or any defect or deficiencies in the Liens securing the Pari Passu Lien Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to SECTION 1.01(b)), each Pari Passu Secured Party hereby agrees that the Liens securing each Series of Pari Passu Lien Obligations on any Common Collateral shall be of equal priority.
(d) For the avoidance of doubt, any amounts to be distributed pursuant to this SECTION 2.01 shall be distributed to each Collateral Agent for further distribution to its Pari Passu Secured Parties.
Appears in 1 contract
Sources: Pari Passu Intercreditor Agreement (Summit Midstream Partners, LP)
Priority of Claims. (a) Anything contained herein or in any of the Senior ABL Facility Documents or the First-Priority Debt Lien Obligations Documents to the contrary notwithstanding (but subject to Section 12.06)notwithstanding, if an Event of Default has occurred and is continuing, and any Senior Priority Secured Party Collateral Agent is taking action to enforce rights in respect of any Senior Priority CollateralCollateral (whether in an Insolvency or Liquidation Proceeding or otherwise), or any distribution is made in respect of any Senior Priority Shared Collateral in any Insolvency or Liquidation Proceeding of the Borrower or any other Debtor or any Senior Priority Secured Party receives any payment pursuant to this Agreement with respect to any Senior Priority Shared Collateral or otherwise pursuant to Section 4.01Grantor, the proceeds of any sale, collection or other liquidation of any such Senior Priority Shared Collateral by any Senior Priority Secured Party or received by any Senior Priority Secured Party pursuant to this Agreement with respect to such Senior Priority Shared Collateral and proceeds of any such distribution Proceeds (subject, in the case of any such distribution, to the sentence immediately followingSection 2.06 hereof) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to which the Senior Priority Obligations are entitled (together the as “Senior Collateral Proceeds”), ) shall be applied firstas follows:
(i) In the case of Term Loan Priority Collateral, FIRST, to the Applicable First-Lien Agent for distribution in accordance with the First-Priority Lien Obligations Documents (including any intercreditor agreements with respect thereto), until payment in full of any First-Priority Lien Obligations secured by such Term Loan Priority Collateral, and SECOND, to the payment in full of the ABL Obligations in cash accordance with Section 4.02 of the ABL Facility Security Agreement and the other applicable provisions of the ABL Facility Security Documents. If any ABL Obligations remain outstanding after the Discharge of the First-Priority Lien Obligations, all fees, expenses and other amounts owing proceeds of the Term Loan Priority Collateral will be applied to the Designated Senior Priority Representative and each other Senior Priority Representative (in each case in its capacity as such) pursuant to the terms repayment of any Senior outstanding ABL Obligations.
(ii) In the case of ABL Priority Debt DocumentCollateral, and second, subject to Section 12.07FIRST, to the payment in full in cash of the Senior ABL Obligations in accordance with Section 4.02 of the ABL Facility Security Agreement and the other applicable provisions of the ABL Facility Security Documents, and SECOND, to the Applicable First-Lien Agent for distribution in accordance with the First-Priority Lien Obligations Documents (including any intercreditor agreements with respect thereto). If any First-Priority Lien Obligations remain outstanding after the Discharge of each Series on a ratable basisthe ABL Obligations, with such all proceeds to of the ABL Priority Collateral will be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower). Notwithstanding the foregoing, with respect to any Senior Priority Shared Collateral for which a third party (other than a Senior Priority Secured Party) has a lien or security interest that is junior in priority to the security interest repayment of any Series of Senior outstanding 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 Senior Priority Obligations (such third party, an “Senior Priority Intervening Creditor”), the value of any Senior Priority Shared Collateral or Proceeds which are allocated to such Senior Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Priority Shared Collateral or proceeds to be distributed in respect of the Series of Senior Priority Obligations with respect to which such Impairment existsLien Obligations.
(b) Notwithstanding anything contained herein or in any of the Senior Priority Debt Documents to the contrary (but subject to Section 12.07), if any Senior Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Collateral Proceeds, any such proceeds and distributions to which the Senior Priority Obligations are entitled, shall be applied first, to the payment in full in cash of all fees, expenses and other amounts owing to each Senior Priority Representative (in its capacity as such) pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash of the Senior Priority Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower).
(c) It is acknowledged that (i) the Senior Priority Obligations aggregate amount of any Series Senior Secured Obligations may, subject to the limitations set forth in the then extant Senior ABL Facility, the First-Lien Credit Agreement and any Other First-Priority Debt Lien Obligations 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 12.01(a2.01(a) or the provisions of this Agreement defining the relative rights of the Senior Priority ABL Facility Secured Parties and the First-Lien Secured Parties, and (ii) a portion of the Senior Secured Obligations consists or may consist of indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed. The priorities provided for herein shall not be altered or otherwise affected by any Refinancing of either the Junior Secured Obligations (or any part thereof) or the Senior Secured Obligations (or any part thereof), by the release of any SeriesCollateral or of any guarantees for any Junior Secured Obligations or Senior Secured Obligations or by any action that any Representative or Secured Party may take or fail to take in respect of any Collateral.
(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the First-Priority Lien Obligations granted on the Collateral or of any Liens securing the ABL Obligations granted on the Collateral and notwithstanding any provision of the Uniform Commercial Code or other applicable legislation of any jurisdiction, or any other applicable law or the ABL Facility Documents or the First-Priority Lien Obligations Documents, or any defect or deficiencies in or failure to perfect any such Liens or any other circumstance whatsoever: (i) (1) the Liens on the Term Loan Priority Collateral securing the First-Priority Lien Obligations will rank senior to any Liens on such Term Loan Priority Collateral securing the ABL Obligations, and (2) the Liens on the ABL Priority Collateral securing the ABL Obligations will rank senior to any Liens on such ABL Priority Collateral securing the First-Priority Lien Obligations, and
(ii) The First-Lien Collateral Agent, on behalf of itself and the First-Lien Secured Parties, and each Other First-Priority Lien Obligations Collateral Agent, on behalf of itself and the applicable Other First-Priority Lien Obligations Secured Parties, each hereby agrees that the Liens of each such Collateral Agent on which both of such Collateral Agents have a Lien shall be of equal priority; provided, however, that the foregoing shall not be construed to alter the relative rights or priorities of the various Series of First-Priority Lien Obligations against each other Series of First-Priority Lien Obligations, which rights and priorities shall be governed by the First-Priority Lien Obligations Documents (including any intercreditor agreements with respect thereto), nor shall the foregoing be construed to grant, or otherwise provide the benefits of, a Lien on any Collateral in favor of a Secured Party that does not hold any Obligations that are secured by such Collateral.
(d) For the avoidance of doubt, notwithstanding that Liens granted to the First-Lien Collateral Agent or ABL Facility Collateral Agent on the Collateral governed by the laws of a jurisdiction located outside of the United States of America (the “Foreign Collateral”) may (A) have legally the same or different ranking due to mandatory legal provisions governing such Foreign Collateral or (B) have been granted or perfected in an order contrary to the contemplated ranking as set forth in this Agreement, the contractual ranking of the Liens on such Foreign Collateral shall be consistent with the ranking set forth in Section 2.1, and all other terms and provisions of this Agreement with respect to Collateral shall be applicable to such Foreign Collateral.
Appears in 1 contract
Priority of Claims. (a) Anything contained herein or in any of the Senior ABL Facility Documents or the First-Priority Debt Lien Obligations Documents to the contrary notwithstanding (but subject to Section 12.06)notwithstanding, if an Event of Default has occurred and is continuing, and any Senior Priority Secured Party Collateral Agent is taking action to enforce rights in respect of any Senior Priority CollateralCollateral (whether in an Insolvency or Liquidation Proceeding or otherwise), or any distribution is made in respect of any Senior Priority Shared Collateral in any Insolvency or Liquidation Proceeding of the Borrower or any other Debtor or any Senior Priority Secured Party receives any payment pursuant to this Agreement with respect to any Senior Priority Shared Collateral or otherwise pursuant to Section 4.01Grantor, the proceeds of any sale, collection or other liquidation of any such Senior Priority Shared Collateral by any Senior Priority Secured Party or received by any Senior Priority Secured Party pursuant to this Agreement with respect to such Senior Priority Shared Collateral and proceeds of any such distribution Proceeds (subject, in the case of any such distribution, to the sentence immediately followingSection 2.06 hereof) (all proceeds of any sale, collection or other liquidation of any Collateral and all proceeds of any such distribution being collectively referred to which the Senior Priority Obligations are entitled (together the as “Senior Collateral Proceeds”), ) shall be applied firstas follows:
(i) In the case of Notes Priority Collateral, FIRST, to the First-Lien Collateral Agent for distribution in accordance with the First-Lien Intercreditor Agreement and the First-Lien Security Documents, until payment in full of any First-Priority Lien Obligations secured by such Notes Priority Collateral, and SECOND, to the payment in full of the ABL Obligations in cash accordance with Section 4.02 of the ABL Facility Security Agreement and the other applicable provisions of the ABL Facility Security Documents. If any ABL Obligations remain outstanding after the Discharge of the First-Priority Lien Obligations, all fees, expenses and other amounts owing proceeds of the Notes Priority Collateral will be applied to the Designated Senior Priority Representative and each other Senior Priority Representative (in each case in its capacity as such) pursuant to the terms repayment of any Senior outstanding ABL Obligations.
(ii) In the case of ABL Priority Debt DocumentCollateral, and second, subject to Section 12.07FIRST, to the payment in full in cash of the Senior ABL Obligations in accordance with Section 4.02 of the ABL Facility Security Agreement and the other applicable provisions of the ABL Facility Security Documents, and SECOND, to the First-Lien Collateral Agent for distribution in accordance with the First-Lien Intercreditor Agreement and the First-Lien Security Documents. If any First-Priority Lien Obligations remain outstanding after the Discharge of each Series on a ratable basisthe ABL Obligations, with such all proceeds to of the ABL Priority Collateral will be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower). Notwithstanding the foregoing, with respect to any Senior Priority Shared Collateral for which a third party (other than a Senior Priority Secured Party) has a lien or security interest that is junior in priority to the security interest repayment of any Series of Senior outstanding 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 Senior Priority Obligations (such third party, an “Senior Priority Intervening Creditor”), the value of any Senior Priority Shared Collateral or Proceeds which are allocated to such Senior Priority Intervening Creditor shall be deducted on a ratable basis solely from the Senior Priority Shared Collateral or proceeds to be distributed in respect of the Series of Senior Priority Obligations with respect to which such Impairment existsLien Obligations.
(b) Notwithstanding anything contained herein or in any of the Senior Priority Debt Documents to the contrary (but subject to Section 12.07), if any Senior Priority Party receives any proceeds or distributions pursuant to Section 4.01 which do not constitute Senior Collateral Proceeds, any such proceeds and distributions to which the Senior Priority Obligations are entitled, shall be applied first, to the payment in full in cash of all fees, expenses and other amounts owing to each Senior Priority Representative (in its capacity as such) pursuant to the terms of any Senior Priority Debt Document, and second, subject to Section 12.07, to the payment in full in cash of the Senior Priority Obligations of each Series on a ratable basis, with such proceeds to be applied to the Senior Priority Obligations of a given Series in accordance with the terms of the applicable Senior Priority Debt Documents (provided, however, that the TLB Proceeds Loan Creditor shall only be entitled to receive such proceeds (on a ratable basis) to the extent such proceeds result directly from a recovery, distribution or payment (howsoever described) from the Swiss Borrower).
(c) It is acknowledged that (i) the Senior Priority Obligations aggregate amount of any Series Senior Secured Obligations may, subject to the limitations set forth in the then extant Senior ABL Facility, the Cash Flow Facility, the Indenture and any Other First-Priority Debt Lien Obligations 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 12.01(a2.01(a) or the provisions of this Agreement defining the relative rights of the Senior Priority ABL Facility Secured Parties and the First-Lien Secured Parties, and (ii) a portion of the Senior Secured Obligations consists or may consist of indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed. The priorities provided for herein shall not be altered or otherwise affected by any Refinancing of either the Junior Secured Obligations (or any part thereof) or the Senior Secured Obligations (or any part thereof), by the release of any SeriesCollateral or of any guarantees for any Junior Secured Obligations or Senior Secured Obligations or by any action that any Representative or Secured Party may take or fail to take in respect of any Collateral.
(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the First-Priority Lien Obligations granted on the Collateral or of any Liens securing the ABL Obligations granted on the Collateral and notwithstanding any provision of the Uniform Commercial Code or other applicable legislation of any jurisdiction, or any other applicable law or the ABL Facility Documents or the First-Priority Lien Obligations Documents, or any defect or deficiencies in or failure to perfect any such Liens or any other circumstance whatsoever:
(i) (1) the Liens on the Notes Priority Collateral securing the First-Priority Lien Obligations will rank senior to any Liens on such Notes Priority Collateral securing the ABL Obligations, and (2) the Liens on the ABL Priority Collateral securing the ABL Obligations will rank senior to any Liens on such ABL Priority Collateral securing the First-Priority Lien Obligations, and
(ii) the First-Lien Collateral Agent, on behalf of itself and the First-Lien Secured Parties, and each Other First-Priority Lien Obligations Collateral Agent, on behalf of itself and the applicable Other First-Priority Lien Obligations Secured Parties, each hereby agrees that the Liens of each such Collateral Agent on which both of such Collateral Agents have a Lien shall be of equal priority; provided, however, that the foregoing shall not be construed to alter the relative rights or priorities of the various Series of First-Priority Lien Obligations against each other Series of First-Priority Lien Obligations, which rights and priorities shall be governed by the First-Priority Lien Obligations Documents and the First-Lien Intercreditor Agreement, nor shall the foregoing be construed to grant, or otherwise provide the benefits of, a Lien on any Collateral in favor of a Secured Party that does not hold any Obligations that are secured by such Collateral, including as set forth in Section 6.18.
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Sources: Abl Intercreditor Agreement (Momentive Performance Materials Inc.)