Lien Subordination. (a) Notwithstanding the respective dates of attachment or perfection of the security interests of CRG and the security interests of [A/R Lender], or any contrary provision of the UCC, or any applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [A/R Lender] or CRG holds possession of all or any part of the Collateral, (i) all now existing and hereafter arising security interests of [A/R Lender] in any A/R Facility Senior Collateral shall at all times be senior to the security interests of CRG in such A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CRG in any CRG Senior Collateral shall at all times be senior to any interests, including any the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, the [A/R Lender] agrees and acknowledges that it shall not receive, and neither the Borrower nor any obligor shall grant, any security interest to the A/R Lender in the CRG Senior Collateral. (b) Each Creditor hereby: (i) acknowledges and consents to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party. (ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral. (c) Subject to Section 2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the parties hereto.
Appears in 4 contracts
Sources: Term Loan Agreement (Silk Road Medical Inc), Term Loan Agreement (Silk Road Medical Inc), Term Loan Agreement (Silk Road Medical Inc)
Lien Subordination. Notwithstanding (ai) Notwithstanding the respective dates date, time, method, manner or order of attachment grant, attachment, or perfection of the security interests of CRG and the security interests of [A/R Lender], any Liens granted to First Lien Agent (or First Lien Co-Agent or any contrary First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) any provision of the UCC, or any other applicable law or decisionlaw, any of the First Lien Loan Documents or the provisions of the Credit Second Lien Loan Documents, and (iv) irrespective of whether [A/R Lender] the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or CRG holds possession allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1) any Lien in respect of all or any part portion of the CollateralCollateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(i2) any Lien in respect of all or any portion of the Collateral now existing and or hereafter arising security interests held by or on behalf of [A/R Lender] First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in any A/R Facility Senior Collateral shall at all times respects be senior and prior to all Liens granted to Second Lien Agent and the security interests of CRG in such A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CRG in any CRG Senior Collateral shall at all times be senior to any interests, including any the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, the [A/R Lender] agrees and acknowledges that it shall not receive, and neither the Borrower nor any obligor shall grant, any security interest to the A/R Lender Second Lien Lenders in the CRG Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents Collateral to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing secure all or any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability portion of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior CollateralSecond Lien Indebtedness.
(c) Subject to Section 2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the parties hereto.
Appears in 4 contracts
Sources: Intercreditor Agreement (Salton Inc), Support Agreement (Salton Inc), Support Agreement (Salton Inc)
Lien Subordination. Notwithstanding (ai) Notwithstanding the respective dates date, time, method, manner or order of attachment grant, attachment, or perfection of any Liens granted to the security interests of CRG and the security interests of [A/R Lender], Senior Agent (or any contrary Senior Lender) or the Noteholder Collateral Agent (or any Noteholder) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of the Senior Agent (or any Senior Lender) or the Noteholder Collateral Agent (or any Noteholder) in any Collateral, (iii) any provision of the UCC, PPSA or any other applicable law law, any of the Senior Loan Documents or decisionthe Indenture Documents, (iv) whether the Liens securing all or part of the Senior Indebtedness are valid, perfected, enforceable, void, avoidable, subordinated, disputed, or allowed, (v) the provisions fact that any such Liens in favor of the Credit DocumentsSenior Agent (or any Senior Lender) securing the Senior Indebtedness are (A) subordinated to any Lien securing any obligation of any Obligor other than the Notes Obligations or (B) otherwise subordinated, voided, avoided, invalidated or lapsed, or (vi) any other circumstance whatsoever, the Senior Agent, on behalf of itself and the Senior Lenders, and irrespective the Noteholder Collateral Agent, on behalf of whether [A/R Lender] or CRG holds possession itself and the Noteholders, hereby agree that:
(1) any Lien in respect of all or any part portion of the CollateralCollateral now or hereafter held by or on behalf of the Noteholder Collateral Agent or any Noteholder that secures all or any portion of the Notes Obligations shall in all respects be junior and subordinate to all Liens granted to the Senior Agent and the Senior Lenders in the Collateral to secure all or any portion of the Senior Indebtedness, and
(i2) any Lien in respect of all or any portion of the Collateral now existing and or hereafter arising security interests held by or on behalf of [A/R Lender] the Senior Agent or any Senior Lender that secures all or any portion of the Senior Indebtedness shall in any A/R Facility Senior Collateral shall at all times respects be senior and prior to all Liens granted to the security interests of CRG in such A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CRG in Noteholder Collateral Agent or any CRG Senior Collateral shall at all times be senior to any interests, including any the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, the [A/R Lender] agrees and acknowledges that it shall not receive, and neither the Borrower nor any obligor shall grant, any security interest to the A/R Lender Noteholder in the CRG Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents Collateral to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing secure all or any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability portion of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior CollateralNotes Obligations.
(c) Subject to Section 2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the parties hereto.
Appears in 2 contracts
Sources: Indenture (Angiotech Pharmaceuticals Inc), Indenture (Angiotech Pharmaceuticals Inc)
Lien Subordination. (a) Notwithstanding the respective dates of attachment or perfection Each holder of the security interests Note hereby agrees that any Lien that it may now or hereafter have in the Collateral is subject and subordinate, to the extent and in the manner provided herein, to any Liens that the Agent or the holder(s) of CRG the Bank Indebtedness may now or hereafter have in the Collateral to secure the Bank Indebtedness. Each holder of the Note agrees that that, except as otherwise provided in Section 4.4 hereof, they shall have no right to undertake any Enforcement Action with respect to any of the Collateral, unless and until all of the holder(s) of Bank Indebtedness shall have been paid in full and the security interests of [A/R Lender]commitments thereunder and the commitments, or any contrary provision if any, of the UCC, or any applicable law or decision, holders of the Senior Indebtedness to extend credit accommodations to Quantum or the provisions Company have expired (and in any event subject to the limitations set forth in Section 4.4 hereof with respect to any Enforcement Action taken in connection with any Insolvency Proceeding).
(b) Notwithstanding any Lien in the Collateral now or hereafter acquired by any holder of the Credit DocumentsNote, the holder(s) of the Bank Indebtedness may take possession of, sell, dispose of, and irrespective of whether [A/R Lender] or CRG holds possession of otherwise deal with all or any part of the Collateral, and may enforce any right or remedy available to it with respect to the Collateral, all without notice to or consent of the holder(s) of the Note except as specifically required by applicable law. Without limiting the generality of the foregoing, if (i) all now existing and hereafter arising security interests of [A/R Lender] the Company or any other Person that has granted a Lien in any A/R Facility Senior Collateral shall at all times be senior intends to sell or otherwise dispose of any Collateral to an unrelated third party outside the ordinary course of business, (ii) the holder(s) of Bank Indebtedness has consented to such sale or disposition and has given written notice thereof to the security interests holder(s) of CRG the Note, (iii) the holder(s) of the Note have failed, within fifteen (15) days after receipt of such notice, to purchase for cash the Bank Indebtedness in such A/R Facility Senior Collateralaccordance with Article XII hereof, and (iiiv) all now existing and hereafter arising security interests the holder(s) of CRG the Bank Indebtedness has applied the net cash proceeds of such sale or disposition to the holder(s) of the Bank Indebtedness in accordance with clause (c) below, each holder of the Note shall be deemed to have consented to such sale or disposition, to have released any CRG Senior Collateral shall at all times be senior to any interests, including any the security interests of [A/R Lender] Lien it may have in such CRG Senior Collateral. Notwithstanding Collateral and to have authorized the foregoing, the [A/R Lender] agrees and acknowledges that it shall not receive, and neither the Borrower nor any obligor shall grant, any security interest Agent or its agents to the A/R Lender in the CRG Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents file partial releases with respect to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject The holder(s) of the Senior Indebtedness shall have no duty to Section 2(b)(ii)preserve, protect, care for, insure, take possession of, collect, dispose of, or otherwise realize upon any of the priorities provided for herein Collateral, and in no event shall the holder(s) of the Senior Indebtedness be deemed to be any holder of the Note’s agent with respect to security interests and liens are applicable only the Collateral. All proceeds received by the holder(s) of the Senior Indebtedness with respect to any Collateral shall be applied by the holder(s) of the Senior Indebtedness to the extent Senior Indebtedness secured by such Collateral in such order of application as the holder(s) of the Senior Indebtedness may choose.
(d) Notwithstanding anything to the contrary in the Note or the Purchase Agreement, unless and until all of the holder(s) of the Senior Indebtedness shall have been paid in full and the commitments, if any, of the holders of the Bank Indebtedness to extend credit accommodations to Quantum or the Company have expired, no holder of the Note shall request or require that the Company or any other Person that has granted a Lien in any Collateral (i) obtain from any bailee holding any item of Collateral any acknowledgement or other document confirming that such bailee holds such collateral for the benefit of any holder of the Note, (ii) obtain from any securities intermediary, letter of credit issuer, depository bank or other party holding or issuing any item of Collateral, any control agreements, (iii) deliver to any holder of the Note any instruments or documents comprising Collateral or endorsements or assignments of same, (iv) obtain possession of or arrange to have the holder of the Note’s Lien noted on any motor vehicle titles, (v) obtain waivers from any landlords or mortgagees of any property where any inventory or equipment constituting Collateral is located, (vi) record with the United States Patent and Trademark Office or the United States Copyright Office any collateral assignments of, or security interests and liens are enforceable, perfected and have not been avoided; if agreements granting or reflecting a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims in, any registered intellectual property owned by the Company or any part thereofother Person that has granted a Lien in any Collateral, the priorities provided for herein shall not be available to such security interest or lien (vii) establish or deposit any amounts into any deposit account, collateral account or lockbox owned by or relating to the extent that it is avoided Company or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among Person that has granted a Lien in any of the parties heretoCollateral.
Appears in 2 contracts
Sources: Convertible Senior Subordinated Note Purchase Agreement (Quantum Fuel Systems Technologies Worldwide Inc), Convertible Senior Subordinated Note Purchase Agreement (Quantum Fuel Systems Technologies Worldwide Inc)
Lien Subordination. (a) Notwithstanding the respective dates Any Lien in respect of attachment all or perfection any portion of the security interests Collateral now or hereafter held by or on behalf of CRG and the security interests of [A/R Lender], Collateral Agent or any contrary provision Holder that secures all or any portion of the UCC, Obligations under the Notes and Note Guarantees shall in all respects be junior and subordinate to all Liens granted in the Collateral to secure all or any applicable law or decision, or the provisions portion of the Credit Documents, First Priority Lien Obligations (and irrespective pari passu with all Liens in respect of whether [A/R Lender] all or CRG holds possession any portion of the Collateral now or hereafter held by the FRN Collateral Agent or any holder of Floating Rate Notes that secures all or any part of the Collateralobligations under the Floating Rate Notes or the Floating Rate Note Guarantees), (i) all now existing and hereafter arising security interests of [A/R Lender] in any A/R Facility Senior Collateral shall at all times be senior to the security interests of CRG in such A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CRG in any CRG Senior Collateral shall at all times be senior to any interests, including any the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, the [A/R Lender] agrees and acknowledges that it shall not receive, and neither the Borrower nor any obligor shall grant, any security interest to the A/R Lender in the CRG Senior Collateral.and
(b) Each Creditor hereby:
(i) acknowledges Any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of the holders from time to time of the First Priority Lien Obligations that secure all or any portion of the First Priority Lien Obligations shall in all respects be senior and consents prior to (A) [Borrower][each Obligor] granting all Liens granted to the other Creditor a security interest Collateral Agent or any Holder in the Common Collateral of such other Creditor, (B) the other Creditor filing to secure all or any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability portion of the other Creditor’s security interest in Obligations under the Common Collateral, Notes or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior CollateralNote Guarantees.
(c) Subject The Collateral Agent, for and on behalf of itself and the Holders, agrees that neither it nor any Holder shall obtain a Lien on any Collateral to Section 2(b)(ii)secure all or any portion of the Obligations under the Notes unless, concurrently therewith, a Lien on such Collateral is granted in favor of (i) the holders from time to time of the First Priority Lien Obligations and (ii) the holders of the Floating Rate Notes, the priorities provided for herein with respect to security interests FRN Trustee and liens the FRN Collateral Agent and that all such Liens are applicable only and will be subject to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the parties heretoIntercreditor Agreements.
Appears in 2 contracts
Sources: Indenture (Angiotech America, Inc.), Indenture (Angiotech Pharmaceuticals Inc)
Lien Subordination. (a) Notwithstanding the respective dates date, time, method, manner or order of grant, attachment or perfection of the security interests any Junior Lien in respect of CRG any Collateral or of any Senior Lien in respect of any Collateral and the security interests of [A/R Lender], or notwithstanding any contrary provision of the UCC, or any applicable law (including the Bankruptcy Code), any Loan Document, any alleged or decision, actual defect or the provisions of the Credit Documents, and irrespective of whether [A/R Lender] or CRG holds possession of all or any part of the Collateral, (i) all now existing and hereafter arising security interests of [A/R Lender] deficiency in any A/R Facility Senior Collateral shall at all times be senior to the security interests of CRG in such A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CRG in any CRG Senior Collateral shall at all times be senior to any interests, including any the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, any failure to attach or (if required under any Loan Document) perfect any Lien created under any Loan Document or any other circumstance whatsoever, each Junior Representative, on behalf of the [A/R Lender] respective Junior Secured Parties, in respect of such Collateral hereby agrees and acknowledges that it shall not receivethat:
(a) any Senior Lien in respect of such Collateral, and neither the Borrower nor any obligor shall regardless of how or when acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be and shall remain senior and prior to any security interest Junior Lien in respect of such Collateral (whether or not such Senior Lien is subordinated to the A/R Lender in the CRG Senior Collateral.any Lien securing any other obligation); and
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) [Borrower][each Obligor] granting to the other Creditor a security interest any Junior Lien in the Common Collateral respect of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, regardless of how or when acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be junior and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents subordinate in all respects to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability any Senior Lien in respect of the other Creditor’s security interest in the Common such Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt doubt, as between the ABL Agent and notwithstanding anything in this Agreement the other Secured Parties, the Lien on the Collateral securing the obligations to the contraryABL Agent under the ABL Credit Agreement (other than Excess ABL Obligations) shall always be senior to the Lien on the Collateral securing the obligations to (i) the Term Secured Parties under the Term Credit Agreement, [(ii) the Additional Indenture Secured Parties under the Additional Indenture and (iii) the Existing Indenture Secured Parties under the Existing Indenture. For the avoidance of doubt, (A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any ) as between the Term Secured Parties and the other action seeking to recharacterize any Intellectual PropertySecured Parties, the proceeds thereof, or any Lien on the Collateral securing the obligations to the Term Secured Parties under the Term Credit Agreement shall be (i) senior to the Lien on the Collateral securing the obligations to (x) the Additional Indenture Secured Parties under the Additional Indenture and (y) the Existing Indenture Secured Parties under the Existing Indenture and (ii) junior to the Lien on the Collateral securing the obligations to the ABL Agent; (B) as between the Additional Indenture Secured Parties and the other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(ii)Secured Parties, the priorities provided for herein with respect to security interests and liens are applicable only Lien on the Collateral securing the obligations to the extent that such security interests Additional Indenture Secured Parties shall be (x) senior to the Lien on the Collateral securing the obligations to the Existing Indenture Secured Parties under the Existing Indenture and liens are enforceable, perfected (y) junior to the Lien on the Collateral securing the obligations to (i) the ABL Agent and have not been avoided(ii) the Term Secured Parties under the Term Credit Agreement; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereofand (C) as between the Existing Indenture Secured Parties and the other Secured Parties, the priorities provided for herein shall not be available to such security interest or lien Lien on the Collateral securing the obligations to the extent that it is avoided or determined Existing Indenture Secured Parties under the Existing Indenture shall be junior to be unenforceable. Nothing in this Section 2(cthe Lien on the Collateral securing the obligations to (i) affects the operation of any turnover of payment provisions hereofABL Agent, or of any other agreements among any of (ii) the parties heretoTerm Secured Parties under the Term Credit Agreement and (iii) the Additional Indenture Secured Parties under the Additional Indenture.
Appears in 2 contracts
Sources: First Supplemental Indenture (SAExploration Holdings, Inc.), Intercreditor Agreement (SAExploration Holdings, Inc.)
Lien Subordination. Notwithstanding (ai) Notwithstanding the respective dates date, time, method, manner or order of attachment grant, attachment, or perfection of the security interests of CRG and the security interests of [A/R Lender], any Liens granted to First Lien Agent (or First Lien Co-Agent or any contrary First Lien Lender) or any Junior Lien Agent (or any Junior Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or any Junior Lien Agent (or any Junior Lien Lender) in any Collateral, (iii) any provision of the UCC, or any other applicable law or decisionlaw, any of the First Lien Loan Documents or the provisions of the Credit Junior Lien Loan Documents, and (iv) irrespective of whether [A/R Lender] the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or CRG holds possession allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, New Second Lien Agent, on behalf of itself and the Second Lien Lenders and Existing Second Lien Agent, on behalf of itself and the Existing Second Lien Lenders hereby agrees that:
(1) any Lien in respect of all or any part portion of the CollateralCollateral now or hereafter held by or on behalf of any Junior Lien Agent or any Junior Lien Lender that secures all or any portion of the Junior Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness,
(i2) any Lien in respect of all or any portion of the Collateral now existing and or hereafter arising security interests held by or on behalf of [A/R Lender] First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in any A/R Facility Senior Collateral shall at all times respects be senior and prior to the security interests of CRG in such A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CRG in any CRG Senior Collateral shall at all times be senior Liens granted to any interests, including any the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, the [A/R Lender] agrees Junior Lien Agent and acknowledges that it shall not receive, and neither the Borrower nor any obligor shall grant, any security interest to the A/R Lender in the CRG Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the parties heretoJunior Lien Lenders in the Collateral to secure all or any portion of the Junior Lien Indebtedness,
(3) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Existing Second Lien Agent or any Existing Second Lien Lender that secures all or any portion of the Existing Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to New Second Lien Agent and any of the New Second Lien Lenders in the Collateral to secure all or any portion of the New Second Lien Indebtedness as provided in the Junior Intercreditor Agreement, and
(4) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of New Second Lien Agent or any New Second Lien Lender that secures all or any portion of the New Second Lien Indebtedness shall in all respects be senior and prior to all Liens granted to the Existing Second Lien Agent and any of the Existing Second Lien Lenders in the Collateral to secure all or any portion of the Existing Second Lien Indebtedness as provided in the Junior Intercreditor Agreement.
Appears in 1 contract
Sources: Intercreditor Agreement (Salton Inc)
Lien Subordination. (a) Notwithstanding With respect to any Liens on the respective dates of attachment ABL Priority Collateral securing the Secured Obligations, such Liens cease to have senior “first priority” status pursuant to an ABL Intercreditor Agreement with respect to Liens on such ABL Priority Collateral securing Indebtedness outstanding under any Term Facility or perfection any Junior Lien Indebtedness, in each case, with an aggregate principal amount outstanding in excess of the security interests of CRG and the security interests of [A/R Lender], or any contrary provision of the UCC, or any applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [A/R Lender] or CRG holds possession of all or any part of the Collateral, (i) all now existing and hereafter arising security interests of [A/R Lender] in any A/R Facility Senior Collateral shall at all times be senior to the security interests of CRG in such A/R Facility Senior CollateralThreshold Amount, and (ii) all now existing and hereafter arising security interests of CRG with respect to the provisions in any CRG Senior ABL Intercreditor Agreement subordinating the Liens on the Collateral shall at all times be senior to securing Indebtedness outstanding under any interestsTerm Facility or any Junior Lien Indebtedness, including any in each case, with an aggregate principal amount outstanding in excess of the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoingThreshold Amount, the [A/R Lender] agrees and acknowledges that it shall not receive, and neither the Borrower nor any obligor shall grant, any security interest to the A/R Lender in Liens on the CRG Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to Collateral securing the Secured Obligations, (A) [Borrower][each Obligor] granting to any Loan Party contests in writing the other Creditor a security interest in the Common Collateral of such other Creditorvalidity or enforceability thereof, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor court of competent jurisdiction in order a final non-appealable order, determines such subordination provisions to perfect its security interest in its Common Collateralbe invalid or unenforceable, and or (C) [Borrower’s][each Obligor’s] entry into such subordination provisions otherwise cease to be valid, binding and enforceable obligations of the Credit Documents parties to which such ABL Intercreditor Agreement;, then, and in every such event (other than an event with respect to Holdings or the other Creditor is a party.
Borrowers described in clause (f) or (g) of this Article) and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Lead Borrower, take any of the following actions, at the same or different times: (i) terminate theCommitments or any Additional Revolving Commitments, and thereupon such Commitments and/or Additional Revolving Commitments shall terminate immediately, (ii) acknowledgesdeclare the Revolving Loans then outstanding to be due and payable in whole (or in part, agrees in which case any principal not so declared to be due and covenantspayable may thereafter be declared to be due and payable), notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute and thereupon the validity, attachment, perfection, priority or enforceability principal of the Revolving Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Creditor’s security interest obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Borrower and (iii) require that the US BorrowersBorrower deposit in the Common CollateralUS LC Collateral Account and the Canadian Borrower deposits in the Canadian LC Collateral Account, or an additional amount in Cash as reasonably requested by the validity, priority or enforceability Issuing Banks (not to exceed 101% of the other Creditor’s Claim. For relevant face amount) of the avoidance of doubt and notwithstanding anything then outstanding US LC Exposure (minus the amount then on deposit in this Agreement to the contrary, [A/R Lender] shall not file US LC Collateral Account) or join Canadian LC Exposure (minus the amount then on deposit in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Canadian LC Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(iiAccount), as applicable; provided that upon the priorities provided for herein occurrence of an event with respect to security interests Holdings or any Borrower described in clauseclauses (f) or (g) of this Article, any such Commitments and/or Additional Revolving Commitments applicable to the US BorrowersBorrower and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien event is judicially determined applicable to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereofthe Canadian Borrower, the priorities provided for herein Canadian Borrower shall not be available to such security automatically terminate and the principal of the Revolving Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or lien other notice of any kind, all of which are hereby waived by the Borrowers. Notwithstanding anything to the extent that it is avoided contrary herein or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereofLoan Document, or of all rights and remedies hereunder and under any other agreements among any Loan Document or at law or equity, including all remedies provided under the UCC or the PPSA, shall be exercised exclusively by the Administrative Agent for the benefit of the parties heretoSecured Parties. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity, including all remedies provided under the UCC or the PPSA.
Appears in 1 contract
Lien Subordination. (a) Notwithstanding the respective dates date, time, method, manner or order of grant, attachment or perfection of the security interests any Junior Lien in respect of CRG any Collateral or of any Senior Lien in respect of any Collateral and the security interests of [A/R Lender], or notwithstanding any contrary provision of the UCC, or any applicable law (including the Bankruptcy Code), any Loan Document, any alleged or decision, actual defect or the provisions of the Credit Documents, and irrespective of whether [A/R Lender] or CRG holds possession of all or any part of the Collateral, (i) all now existing and hereafter arising security interests of [A/R Lender] deficiency in any A/R Facility Senior Collateral shall at all times be senior to the security interests of CRG in such A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CRG in any CRG Senior Collateral shall at all times be senior to any interests, including any the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, any failure to attach or (if required under any Loan Document) perfect any Lien created under any Loan Document or any other circumstance whatsoever, each Junior Representative, on behalf of the [A/R Lender] respective Junior Secured Parties, in respect of such Collateral hereby agrees and acknowledges that it shall not receivethat:
(a) any Senior Lien in respect of such Collateral, and neither the Borrower nor any obligor shall regardless of how or when acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be and shall remain senior and prior to any security interest Junior Lien in respect of such Collateral (whether or not such Senior Lien is subordinated to the A/R Lender in the CRG Senior Collateral.any Lien securing any other obligation); and
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) [Borrower][each Obligor] granting to the other Creditor a security interest any Junior Lien in the Common Collateral respect of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, regardless of how or when acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be junior and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents subordinate in all respects to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability any Senior Lien in respect of the other Creditor’s security interest in the Common such Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt doubt, as between the ABL Secured Parties and notwithstanding anything in this Agreement the other Secured Parties, the Lien on the Collateral securing the ABL Obligations (other than Excess ABL Obligations) shall always be senior to the contraryLien on the Collateral securing the Term Obligations, [A/R Lender] Convertible Note Indenture Obligations and Excess ABL Obligations and (ii) the Lien on the Collateral securing the Excess ABL Obligations shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any always be junior to the Lien on the Collateral securing the ABL Obligations (other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(iithan Excess ABL Obligations), the priorities provided for herein with respect to security interests Term Obligations, and liens are applicable only the Convertible Note Obligations. For the avoidance of doubt, (A) as between the Term Secured Parties and the other Secured Parties, the Lien on the Collateral securing the Term Obligations shall be (i) senior to the extent that such security interests Lien on the Collateral securing the Convertible Note Indenture Obligations and liens are enforceable, perfected the Excess ABL Obligations and have not been avoided; if a security interest or lien is judicially determined (ii) junior to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereofthe Lien on the Collateral securing the ABL Obligations (other than Excess ABL Obligations)and (B) as between the Convertible Note Secured Parties and the other Secured Parties, the priorities provided for herein Lien on the Collateral securing the Convertible Note Indenture Obligations shall not be available to such security interest or lien (i) junior to the extent that it is avoided or determined Lien on the Collateral securing the ABL Obligations (other than the Excess ABL Obligations) and the Term Obligations and (ii) senior to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of Lien on the parties heretoCollateral securing the Excess ABL Obligations.
Appears in 1 contract
Sources: Intercreditor Agreement (SAExploration Holdings, Inc.)
Lien Subordination. (a) Notwithstanding anything to the respective dates of attachment contrary in the Notes or perfection the Purchase Agreement, any and all obligations of the security interests of CRG Company to make any payments under or with respect to the Notes and the security interests of [A/R Lender], or any contrary provision indebtedness of the UCC, Company hereunder or any applicable law evidenced hereby or decision, or the provisions of the Credit Documents, and irrespective of whether [A/R Lender] or CRG holds possession of all or any part of the Collateral, thereby shall be subject to (i) all now existing the First Lien/Second Lien Intercreditor Agreement, dated as of the Issuance Date (as may be amended, restated, amended and hereafter arising security interests restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”), by and among the First Lien ABL Administrative Agent, the First Lien ABL Collateral Agents, the First Lien Term Loan Agent, and the Representative, and acknowledged and agreed to by the Company, Holdings and the other “Guarantors” from time to time party thereto, and, as set forth therein, subordinated in respect of [A/R Lender] in any A/R Facility Senior Collateral shall at all times be senior liens to the security interests obligations arising under that certain First Lien Term Loan Credit Agreement (as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “First Lien Term Loan Credit Agreement”), dated as of CRG in such A/R Facility Senior CollateralNovember 17, 2023, by and among the Company, Holdings, the other “Guarantors” from time to time party thereto, the financial institutions party thereto from time to time as lenders (the “First Lien Term Lenders”), and JEFFERIES FINANCE LLC, as administrative agent and as collateral agent (the “First Lien Term Loan Agent”) and that certain Credit Agreement (as may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “First Lien ABL Credit Agreement”), dated as of May 22, 2023, by and among the Company, Holdings, the other “Guarantors” from time to time party thereto, the financial institutions and issuing banks party from time to time thereto as lenders (“First Lien ABL Lenders”), CITIBANK, N.A. (“Citi”), as administrative agent (“First Lien ABL Administrative Agent”), and Citi and PNC Bank, National Association as co-collateral agents (“First Lien ABL Collateral Agents”) and (ii) all now existing and hereafter arising security interests of CRG in any CRG Senior Collateral shall at all times be senior to any interests, including any the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, the [A/R Lender] agrees and acknowledges that it shall not receive, and neither the Borrower nor any obligor shall grant, any security interest to the A/R Lender in the CRG Senior CollateralABL Increditor Agreement.
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the parties hereto.
Appears in 1 contract
Lien Subordination. Notwithstanding (ai) Notwithstanding the respective dates date, time, method, manner or order of attachment grant, attachment, or perfection of the security interests of CRG and the security interests of [A/R Lender], any Liens granted to First Lien Agent (or any contrary provision of the UCC, First Lien Lender) or Second Lien Agent (or any applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [A/R Second Lien Lender] or CRG holds possession ) in respect of all or any part portion of the Collateral, (iii) all now existing and hereafter arising security interests the order or time of [A/R filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or any First Lien Lender] ) or Second Lien Agent (or any Second Lien Lender) in any A/R Facility Senior Collateral shall at all times be senior to the security interests of CRG in such A/R Facility Senior Collateral, and (iiiii) all now existing and hereafter arising security interests of CRG in any CRG Senior Collateral shall at all times be senior to any interests, including any the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, the [A/R Lender] agrees and acknowledges that it shall not receive, and neither the Borrower nor any obligor shall grant, any security interest to the A/R Lender in the CRG Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability provision of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, UCC or any other CRG Senior Collateral applicable law, any of the First Lien Loan Documents or proceeds thereof as A/R Facility Senior Collateral.
the Second Lien Loan Documents, (civ) Subject to Section 2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only except to the extent that such security interests and liens set forth below in this Section 2.a, whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, perfected and have not been avoided; if a security interest void, avoidable, subordinated, disputed or lien is judicially determined to be unenforceable allowed, or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien (v) except to the extent that it is avoided or determined to be unenforceable. Nothing set forth below in this Section 2(c) affects the operation of any turnover of payment provisions hereof2.a, or of any other agreements among circumstance whatsoever, First Lien Agent and Second Lien Agent hereby agree that any Lien in respect of all or any portion of the parties hereto.Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent and the First Lien Lenders in such Collateral to secure all or any portion of the First Lien Indebtedness (other than any Excluded First Lien Indebtedness),
Appears in 1 contract
Lien Subordination. (a) Notwithstanding the respective dates of attachment or perfection of the security interests of CRG and the security interests of [A/R Lender], or any contrary provision of the UCC, or any applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [A/R Lender] or CRG holds possession of all or any part of the Collateral, Subordinated Creditor hereby unconditionally agrees that: (i) all now existing and hereafter arising security interests Liens of [A/R Lender] the Subordinated Creditor in any A/R Facility Senior Collateral property of either Obligor shall at all times be senior and hereby are subordinated to the security interests of CRG in such A/R Facility Senior CollateralLiens, and (ii) other than as set forth in Section 2.7(b), the Subordinated Creditor shall have no right to possession of any property of any Obligor or to take any Subordinated Collection Action, unless and until all now existing the Senior Indebtedness shall have been fully paid and hereafter arising security interests satisfied and the Commitments have been terminated. Notwithstanding any rights or remedies available to Subordinated Creditor under applicable law (including, without limitation, under the Bankruptcy Code) or under any Subordinated Debt Document, Subordinated Creditor shall not, without the prior written consent of CRG in Senior Lender, be permitted to take any CRG Senior Collateral shall at all times be senior action to foreclose, repossess, marshal, control or exercise any remedies with respect to any interests, including any the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, the [A/R Lender] agrees and acknowledges that it shall not receive, and neither the Borrower nor any obligor shall grant, any security interest to the A/R Lender in the CRG Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability property of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding either Obligor or take any other action seeking to recharacterize which would interfere with or impair the Senior Liens or the rights of Senior Lender against the either Obligor’s property, until the payment in full of the Senior Indebtedness and the termination of the Commitments. Notwithstanding the date, manner or order of grant, attachment or perfection of any Intellectual PropertyLiens or any Senior Liens, and notwithstanding any provision of the proceeds thereof, UCC or any other CRG applicable law or the provisions of any Subordinated Debt Document or any other Senior Collateral Debt Document or proceeds thereof as A/R Facility any other circumstance whatsoever, the Subordinated Creditor, hereby agrees that (a) any Senior Collateral.
Liens now or hereafter held by or for the benefit of Senior Lender shall be senior in right, priority, operation, effect and all other respects to any and all Subordinated Creditor Liens and (cb) Subject any Subordinated Creditor Lien now or hereafter held by or for the benefit of any Subordinated Creditor shall be junior and subordinate in right, priority, operation, effect and all other respects to Section 2(b)(iiany and all Senior Liens. The Senior Liens shall be and remain senior in right, priority, operation, effect and all other respects to any Subordinated Creditor Liens for all purposes, whether or not any Senior Liens are subordinated in any respect to any other Lien securing any other obligation of either Obligor, any other grantor or any other Person and regardless of whether the Lien purported to be granted is found to be improperly granted, improperly perfected, a fraudulent conveyance or legally or otherwise deficient in any manner. Each of the Senior Lender, and the Subordinated Creditor, agrees that it will not, and hereby waives any right to, directly or indirectly, contest or support any other Person in contesting, in any proceeding (including any Proceeding), the priorities priority, validity or enforceability of any Senior Lien, or the validity or enforceability of the priorities, rights or obligations established by this Agreement; provided for herein with respect that nothing in this Agreement shall be construed to security interests prevent or impair the rights of the Senior Lender to enforce this Agreement. Each Obligor, by its execution of this Agreement, hereby acknowledges and liens are applicable only agrees to the extent that such security interests and liens are enforceableprovisions of this paragraph, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien notwithstanding anything to the extent that it contrary in any document to which such Obligor is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the parties heretoa party.
Appears in 1 contract
Sources: Subordination and Intercreditor Agreement (Ibf Vi Guaranteed Income Fund)
Lien Subordination. Notwithstanding (ai) Notwithstanding the respective dates date, time, method, manner or order of attachment grant, attachment, or perfection of the security interests of CRG and the security interests of [A/R Lender], any Liens granted to Senior Agent (or any contrary Senior Lender) or Junior Agent (or any Junior Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of Senior Agent (or any Senior Lender) or Junior Agent (or any Junior Lender) in any Collateral, (iii) any provision of the UCC, or any other applicable law or decisionlaw, any of the Senior Loan Documents or the provisions of the Credit Junior Loan Documents, and (iv) except to the extent set forth below, irrespective of whether [A/R Lender] the Liens securing the Senior Loan Documents are valid, enforceable, void, avoidable, subordinated, disputed or CRG holds possession allowed, or (v) except to the extent set forth below, any other circumstance whatsoever, Senior Agent, on behalf of itself and the Senior Lenders, and Junior Agent, on behalf of itself and the Junior Lenders, hereby agree that:
(1) any Lien in respect of all or any part portion of the CollateralCollateral now or hereafter held by or on behalf of Junior Agent or any Junior Lender that secures all or any portion of the Junior Indebtedness, shall in all respects be junior and subordinate to all Liens granted to Senior Agent and the Senior Lenders in the Collateral to secure all or any portion of the Senior Indebtedness up to the Maximum Priority Senior Loan Amount except to the extent that such Liens of Senior Agent and the Senior Lenders are invalid, unenforceable, void, avoidable, subordinated, disputed or not allowed as a result of any action taken by Senior Agent, or any failure by Senior Agent to take any action, with respect to any financing statement (including any amendment to or continuation thereof), mortgage, intellectual property filing or other perfection document, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Senior Agent or any Senior Lender that secures all or any portion of the Senior Indebtedness up to the Maximum Priority Senior Loan Amount shall in all respects be senior and prior to all Liens granted to Junior Agent and the Junior Lenders in the Collateral to secure all or any portion of the Junior Indebtedness except to the extent that such Liens of Senior Agent and the Senior Lenders are invalid, unenforceable, void, avoidable, subordinated, disputed or not allowed as a result of any action taken by Senior Agent, or any failure by Senior Agent to take any action, with respect to any financing statement (including any amendment to or continuation thereof), mortgage, intellectual property filing or other perfection document. Notwithstanding the foregoing and any other provision to the contrary contained in this Agreement, (i) the subordination of Liens provided for in this Agreement shall not be effective on any date with respect to any part of the Collateral in which the Liens of Senior Agent and the Senior Lenders are invalid, unenforceable, void, avoidable, subordinated, disputed or not allowed as a result of any action taken by Senior Agent, or any failure by Senior Agent to take any action, with respect to any financing statement (including any amendment to or continuation thereof), mortgage, intellectual property filing or other perfection document, in which event Junior Agent and the Junior Lenders shall be entitled to receive and retain all now existing and hereafter arising security interests of [A/R Lender] in any A/R Facility Senior Proceeds with respect to such Collateral shall at all times be senior to the security interests extent the Liens of CRG in Junior Agent and the Junior Lenders are valid, enforceable, not void, not avoidable, not subordinated, not disputed and allowed with respect to such A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CRG in any CRG Senior Collateral shall at all times be senior to any interests, including any the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, the [A/R Lender] agrees and acknowledges that it shall not receive, and neither the Borrower nor any obligor shall grant, any security interest to the A/R Lender in the CRG Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(ii), the priorities provided for herein except with respect to security interests Permitted Liens (as defined in the Original Senior Credit Agreement) and liens are applicable only except as expressly provided in Section 2.e, Senior Agent and the Senior Lenders agree not to contractually subordinate, or otherwise contractually relinquish the benefits of, their Lien in any Collateral to the extent that such security interests and liens are enforceableLien, perfected and have not been avoided; if a security interest indebtedness or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or claim of any other agreements among any creditor of the parties heretoBorrowers or any Obligor without the prior written consent of Junior Agent and the Junior Lenders.
Appears in 1 contract
Sources: Intercreditor Agreement (Monotype Imaging Holdings Inc.)
Lien Subordination. (a) Each Subordinated Creditor hereby acknowledges each Loan Party’s grant of first priority Liens in the Collateral to Lender as security for the Lender Indebtedness and agrees that the existence of any such Liens shall not constitute an event of default under the Subordinated Loan Documents.
(b) Subject to the terms and conditions hereof, Lender hereby consents to each Loan Party’s grant of Liens in the Collateral to Subordinated Creditors as security for the Subordinated Indebtedness and agrees that the existence of any such Liens (other than any Lien that may hereafter arise from any judgment obtained against any Loan Party) shall not constitute a Company Event of Default.
(c) Notwithstanding the respective dates date, time, method, manner, or order of attachment grant, attachment, or perfection of any Liens in the security interests Collateral securing the Subordinated Indebtedness or of CRG any Liens in the Collateral securing the Lender Indebtedness (including, in each case, notwithstanding whether any such Lien is granted (or secures Debt relating to the period) before or after the commencement of any Proceeding) and the security interests of [A/R Lender], or notwithstanding any contrary provision of the UCCUCC or any other applicable law or the Subordinated Loan Documents or any defect or deficiencies in, or failure to attach or perfect, the Liens securing the Lender Indebtedness, or any applicable law or decisionother circumstance whatsoever, or the provisions of the Credit Documents, Lender and irrespective of whether [A/R Lender] or CRG holds possession of all or any part of the Collateral, (i) all now existing and hereafter arising security interests of [A/R Lender] in any A/R Facility Senior Collateral shall at all times be senior to the security interests of CRG in such A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CRG in any CRG Senior Collateral shall at all times be senior to any interests, including any the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, the [A/R Lender] agrees and acknowledges that it shall not receive, and neither the Borrower nor any obligor shall grant, any security interest to the A/R Lender in the CRG Senior Collateral.
(b) Each Creditor herebySubordinated Creditors hereby agree that:
(i) acknowledges and consents to (A) [Borrower][each Obligor] granting any Lien with respect to the other Creditor a security interest Collateral securing any Lender Indebtedness, whether such Lien is now or hereafter held by or on behalf of, or created for the benefit of, Lender or any agent or trustee therefor, regardless of how or when acquired, whether by grant, possession, statute, operation of law, subrogation, or otherwise, shall be senior in all respects and prior to any Lien with respect to the Common Collateral of such other Creditor, (B) the other Creditor filing securing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.Subordinated Indebtedness; and
(ii) acknowledgesany Lien with respect to the Collateral securing any Subordinated Indebtedness, whether such Lien is now or hereafter held by or on behalf of, or created for the benefit of, Subordinated Creditors or any agent or trustee therefor, regardless of how or when acquired, whether by grant, possession, statute, operation of law, subrogation, or otherwise, shall be junior and subordinate in all respects to all Liens with respect to the Collateral securing any Lender Indebtedness. All Liens with respect to the Collateral securing any Lender Indebtedness shall be and remain senior in all respects and prior to all Liens with respect to the Collateral securing any Subordinated Indebtedness, for all purposes, whether or not such Liens securing any Lender Indebtedness are subordinated to any Lien securing any other obligation of the Loan Parties or any other Person (but only to the extent that such subordination is permitted pursuant to the terms of the Credit Agreement and the Subordinated Loan Documents, or as contemplated in Section 8.2).
(d) If for any reason any Lien granted or conveyed by any Loan Party to Lender is set aside or otherwise declared ineffective, in whole or in part, by any court of competent jurisdiction, and if as a consequence thereof any Subordinated Creditor becomes entitled to receive any proceeds from any of the Collateral or on account of such Subordinated Creditor’s Lien in any of the Collateral, then any such payments or proceeds received by such Subordinated Creditor shall be used by it to purchase a junior participation in the Lender Indebtedness pursuant to a junior participation agreement in form and content satisfactory to Lender but in all events providing that Lender’s retained interest in the Lender Indebtedness (including both principal and interest) and all costs and expenses incurred by Lender (including attorneys’ fees) in attempting to collect the Lender Indebtedness or to realize upon any of the Collateral shall be paid in full before such Subordinated Creditor shall be entitled to any payment on account of its junior participation and such Subordinated Creditor’s junior participation will be without recourse of any kind to Lender except for Lender’s gross negligence or willful misconduct after the date of such Subordinated Creditor’s purchase of such junior participation.
(e) Each of the Subordinated Creditors and Lender agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall will not (and hereby waives any right to), directly or indirectly, contest, challenge or dispute support any other Person in contesting, in any proceeding (including any Proceeding), the extent, validity, attachment, perfection, priority priority, or enforceability of a Lien held (i) by or on behalf of the other Creditor’s security interest Lender in the Common CollateralCollateral (or the extent, validity, allowability, or enforceability of any Lender Indebtedness secured thereby or purported to be secured thereby) or (ii) by or on behalf of any of the Subordinated Creditors in the Collateral (or the extent, validity, allowability, or enforceability of any Subordinated Indebtedness secured thereby or purported to be secured thereby), as the case may be, or the validityprovisions of this Agreement; provided, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything that nothing in this Agreement shall be construed to prevent or impair the rights of Lender and Subordinated Creditors to enforce the terms of this Agreement, including the provisions of this Agreement relating to the contrary, [A/R Lender] shall not file or join priority of the Liens securing the Lender Indebtedness and the Subordinated Indebtedness as provided in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateralthis Section 2.
(cf) Subject If, at any time, Lender shall subordinate, in whole or in part, its Lien upon any of the Collateral to Section 2(b)(ii)or in favor of any other Person, the priorities provided for herein with respect to security interests and liens are applicable only to priority of Lender’s Lien in the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein Collateral vis-a-vis Subordinated Creditors shall not be available to such security interest or lien to the extent that it is avoided or determined affected thereby, and Lender’s Lien shall continue to be unenforceable. Nothing superior to each Subordinated Creditor’s Lien in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the parties heretoCollateral.
Appears in 1 contract
Sources: Subordination and Intercreditor Agreement (Revolution Lighting Technologies, Inc.)
Lien Subordination. Notwithstanding (ai) Notwithstanding the respective dates date, time, method, manner or order of attachment grant, attachment, or perfection of the security interests of CRG and the security interests of [A/R Lender], any Liens granted to Senior Lien Agent (or any contrary Senior Lien Lender) or Junior Lien Agent (or any Junior Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of Senior Lien Agent (or any Senior Lien Lender) or Junior Lien Agent (or any Junior Lien Lender) in any Collateral, (iii) any provision of the UCC, or any other applicable law or decisionlaw, any of the Senior Lien Loan Documents or the provisions of the Credit Junior Lien Loan Documents, and (iv) irrespective of whether [A/R Lender] the Liens securing the Senior Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or CRG holds possession allowed, or (v) any other circumstance whatsoever, the Senior Lien Agent , on behalf of itself and the Senior Lien Lenders, and Junior Lien Agent, on behalf of itself and the Junior Lien Lenders, hereby agree that:
(1) any Lien in respect of all or any part portion of the CollateralCollateral now or hereafter held by or on behalf of Junior Lien Agent or any Junior Lien Lender that secures all or any portion of the Junior Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to Senior Lien Agent and the Senior Lien Lenders in the Collateral to secure all or any portion of the Senior Lien Indebtedness, and
(i2) any Lien in respect of all or any portion of the Collateral now existing and or hereafter arising security interests held by or on behalf of [A/R Lender] Senior Lien Agent or any Senior Lien Lender that secures all or any portion of the Senior Lien Indebtedness shall in any A/R Facility Senior Collateral shall at all times respects be senior and prior to all Liens granted to Junior Lien Agent and the security interests of CRG in such A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CRG in any CRG Senior Collateral shall at all times be senior to any interests, including any the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, the [A/R Lender] agrees and acknowledges that it shall not receive, and neither the Borrower nor any obligor shall grant, any security interest to the A/R Lender Junior Lien Lenders in the CRG Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents Collateral to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing secure all or any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability portion of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior CollateralJunior Lien Indebtedness.
(c) Subject to Section 2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the parties hereto.
Appears in 1 contract
Lien Subordination. (a) Notwithstanding the respective dates of attachment or perfection Each holder of the security interests Note hereby agrees that any Lien that it may now or hereafter have in the Collateral is subject and subordinate, to the extent and in the manner provided herein, to any Liens that the Agent or the holder(s) of CRG the Bank Indebtedness may now or hereafter have in the Collateral to secure the Bank Indebtedness. Each holder of the Note agrees that, except as otherwise provided in Section 4.4 hereof, they shall have no right to undertake any Enforcement Action with respect to any of the Collateral, unless and until all of the holder(s) of Bank Indebtedness shall have been paid in full and the security interests of [A/R Lender]commitments thereunder and the commitments, or any contrary provision if any, of the UCC, or any applicable law or decision, holders of the Senior Indebtedness to extend credit accommodations to Quantum or the provisions Company have expired (and in any event subject to the limitations set forth in Section 4.4 hereof with respect to any Enforcement Action taken in connection with any Insolvency Proceeding).
(b) Notwithstanding any Lien in the Collateral now or hereafter acquired by any holder of the Credit DocumentsNote, the holder(s) of the Bank Indebtedness may take possession of, sell, dispose of, and irrespective of whether [A/R Lender] or CRG holds possession of otherwise deal with all or any part of the Collateral, and may enforce any right or remedy available to it with respect to the Collateral, all without notice to or consent of the holder(s) of the Note except as specifically required by applicable law. Without limiting the generality of the foregoing, if (i) all now existing and hereafter arising security interests of [A/R Lender] the Company or any other Person that has granted a Lien in any A/R Facility Senior Collateral shall at all times be senior intends to sell or otherwise dispose of any Collateral to an unrelated third party outside the ordinary course of business, (ii) the holder(s) of Bank Indebtedness has consented to such sale or disposition and has given written notice thereof to the security interests holder(s) of CRG the Note, (iii) the holder(s) of the Note have failed, within fifteen (15) days after receipt of such notice, to purchase for cash the Bank Indebtedness in such A/R Facility Senior Collateralaccordance with Article XII hereof, and (iiiv) all now existing and hereafter arising security interests the holder(s) of CRG the Bank Indebtedness has applied the net cash proceeds of such sale or disposition to the holder(s) of the Bank Indebtedness in accordance with clause (c) below, each holder of the Note shall be deemed to have consented to such sale or disposition, to have released any CRG Senior Collateral shall at all times be senior to any interests, including any the security interests of [A/R Lender] Lien it may have in such CRG Senior Collateral. Notwithstanding Collateral and to have authorized the foregoing, the [A/R Lender] agrees and acknowledges that it shall not receive, and neither the Borrower nor any obligor shall grant, any security interest Agent or its agents to the A/R Lender in the CRG Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents file partial releases with respect to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject The holder(s) of the Senior Indebtedness shall have no duty to Section 2(b)(ii)preserve, protect, care for, insure, take possession of, collect, dispose of, or otherwise realize upon any of the priorities provided for herein Collateral, and in no event shall the holder(s) of the Senior Indebtedness be deemed to be any holder of the Note’s agent with respect to security interests and liens are applicable only the Collateral. All proceeds received by the holder(s) of the Senior Indebtedness with respect to any Collateral shall be applied by the holder(s) of the Senior Indebtedness to the extent Senior Indebtedness secured by such Collateral in such order of application as the holder(s) of the Senior Indebtedness may choose.
(d) Notwithstanding anything to the contrary in the Note or the Purchase Agreement, unless and until all of the holder(s) of the Senior Indebtedness shall have been paid in full and the commitments, if any, of the holders of the Bank Indebtedness to extend credit accommodations to Quantum or the Company have expired, no holder of the Note shall request or require that the Company or any other Person that has granted a Lien in any Collateral (i) obtain from any bailee holding any item of Collateral any acknowledgement or other document confirming that such bailee holds such collateral for the benefit of any holder of the Note, (ii) obtain from any securities intermediary, letter of credit issuer, depository bank or other party holding or issuing any item of Collateral, any control agreements, (iii) deliver to any holder of the Note any instruments or documents comprising Collateral or endorsements or assignments of same, (iv) obtain possession of or arrange to have the holder of the Note’s Lien noted on any motor vehicle titles, (v) obtain waivers from any landlords or mortgagees of any property where any inventory or equipment constituting Collateral is located, (vi) record with the United States Patent and Trademark Office or the United States Copyright Office any collateral assignments of, or security interests and liens are enforceable, perfected and have not been avoided; if agreements granting or reflecting a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims in, any registered intellectual property owned by the Company or any part thereofother Person that has granted a Lien in any Collateral, the priorities provided for herein shall not be available to such security interest or lien (vii) establish or deposit any amounts into any deposit account, collateral account or lockbox owned by or relating to the extent that it is avoided Company or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among Person that has granted a Lien in any of the parties heretoCollateral.
Appears in 1 contract
Lien Subordination. Notwithstanding (ai) Notwithstanding the respective dates date, time, method, manner or order of attachment grant, attachment, or perfection of any Liens granted to the security interests of CRG and the security interests of [A/R Lender], First Lien Agent (or any contrary provision of First Lien Lender) or the UCC, Second Lien Agent (or any applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [A/R Second Lien Lender] or CRG holds possession ) in respect of all or any part portion of the Collateral, (iii) all now existing and hereafter arising security interests the order or time of [A/R filing or recordation of any document or instrument for perfecting the Liens in favor of the First Lien Agent (or any First Lien Lender] ) or the Second Lien Agent (or any Second Lien Lender) in any A/R Facility Senior Collateral shall at all times be senior Collateral, (iii) any provision of the UCC or any other applicable law, any of the First Lien Loan Documents or any of the Second Lien Loan Documents, (iv) except to the security interests of CRG extent set forth below in such A/R Facility Senior Collateralthis Section 2.a, and whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (iiv) all now existing and hereafter arising security interests of CRG except to the extent set forth below in this Section 2.a, any CRG Senior Collateral shall at all times be senior to any interests, including any the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoingother circumstance whatsoever, the [A/R Lender] agrees First Lien Agent and acknowledges that it shall not receive, and neither the Borrower nor any obligor shall grant, any security interest to the A/R Lender in the CRG Senior Collateral.
(b) Each Creditor herebySecond Lien Agent hereby agree that:
(i1) acknowledges any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of the Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and consents subordinate to all Liens granted to First Lien Agent and the First Lien Lenders in such Collateral to secure all or any portion of the First Lien Indebtedness (Aother than any Excluded First Lien Indebtedness),
(2) [Borrower][each Obligor] granting any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of the Second Lien Agent or any Second Lien Lender that secures all or any portion of the Excluded Second Lien Indebtedness shall in all respects be junior and subordinate to all Liens granted to the First Lien Agent and the First Lien Lenders in such Collateral to secure all or any portion of the First Lien Indebtedness (including any Excluded First Lien Indebtedness),
(3) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of the First Lien Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness (other Creditor a security interest than any Excluded First Lien Indebtedness) shall in all respects be senior and prior to all Liens granted to the Second Lien Agent and the Second Lien Lenders in the Common Collateral to secure all or any portion of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.Second Lien Indebtedness,
(ii4) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge any Lien in respect of all or dispute the validity, attachment, perfection, priority or enforceability any portion of the other Creditor’s security interest Collateral now or hereafter held by or on behalf of the First Lien Agent or any First Lien Lender that secures all or any portion of the Excluded First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to the Second Lien Agent and the Second Lien Lenders in the Common Collateral, Collateral to secure all or the validity, priority or enforceability any portion of the other Creditor’s Claim. For Excluded Second Lien Indebtedness,
(5) any Lien in respect of all or any portion of the avoidance Collateral now or hereafter held by or on behalf of doubt the First Lien Agent or any First Lien Lender that secures all or any portion of the Excluded First Lien Indebtedness, shall in all respects be junior and notwithstanding anything in this Agreement subordinate to all Liens granted to the contrarySecond Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtedness (other than any Excluded Second Lien Indebtedness), [A/R Lender] and
(6) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of the Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness (other than any Excluded Second Lien Indebtedness) shall in all respects be senior and prior to all Liens granted to the First Lien Agent and the First Lien Lenders in the Collateral to secure all or any portion of the Excluded First Lien Indebtedness. All Liens with respect to the Collateral securing any First Lien Indebtedness shall (to the extent provided above) be and remain senior in all respects and prior to all Liens with respect to the Collateral securing any Second Lien Indebtedness for all purposes, whether or not file or join in such Liens securing any motion or pleading in connection with First Lien Indebtedness are subordinated to any Insolvency Proceeding or take Lien securing any other action seeking to recharacterize obligation of any Intellectual Property, the proceeds thereof, Obligor or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
person (c) Subject to Section 2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable but only to the extent that such security interests subordination is permitted pursuant to the terms of the First Lien Credit Agreement and liens are enforceablethe Second Lien Credit Agreement, perfected or as contemplated in Section 3.d). Subject to the immediately preceding sentence, but notwithstanding any other provision to the contrary contained in this Agreement: (i) the First Lien Agent and have the First Lien Lenders agree not been avoidedto contractually subordinate, or otherwise contractually assign the benefits of, their Lien in any Collateral to the Lien, indebtedness or claim of any other creditor of any Obligor without the prior written consent of the Second Lien Agent (provided that no such consent shall be required in connection with the assignment of such Lien in connection with a Refinancing of the First Lien Indebtedness in accordance with the provisions hereof); if and (ii) the Second Lien Agent and the Second Lien Lenders agree not to contractually subordinate, or otherwise contractually assign the benefits of, their Lien in any Collateral to the Lien, indebtedness or claim of any other creditor of any Obligor without the prior written consent of the First Lien Agent (provided that no such consent shall be required in connection with the assignment of such Lien in connection with a security interest or lien is judicially determined to Refinancing of the Second Lien Indebtedness in accordance with the provisions hereof). The subordination of Liens provided for in this Agreement shall not be unenforceable or unperfected or is judicially avoided effective from and after any date with respect to one or more Claims or any part thereofof the Collateral as to which: (i) the Liens of the First Lien Agent and the First Lien Lenders are finally determined by a non-appealable court order to be invalid, unenforceable, or void, in which event, notwithstanding the provisions of Sections 6 and 7, the priorities provided for herein Second Lien Agent and the Second Lien Lenders shall not be available entitled to receive and retain, from and after such date, all Proceeds with respect to such security interest or lien Collateral to the extent that it the Liens of the Second Lien Agent and the Second Lien Lenders have not been finally determined by a non-appealable court order to be invalid, unenforceable, or void with respect to such Collateral; and (ii) the Liens of the Second Lien Agent and the Second Lien Lenders are finally determined by a non-appealable court order to be invalid, unenforceable, or void, in which event, notwithstanding the provisions of Sections 6 and 7, the First Lien Agent and the First Lien Lenders shall be entitled to receive and retain, from and after such date, all Proceeds with respect to such Collateral to the extent that the Liens of the First Lien Agent and the First Lien Lenders have not been finally determined by a non-appealable court order to be invalid, unenforceable, or void with respect to such Collateral. The parties hereto agree that the provisions of clause (i) of the immediately preceding sentence shall not apply (and the subordination shall be effective) with respect to any item of Collateral in the event that (x) the Second Lien Agent does not comply with its obligations under Section 2.h with respect to such item of Collateral or (y) a notice is delivered to the First Lien Agent in accordance with the second sentence of Section 2.h with respect to such Collateral less than 90 days before the date that an Insolvency Proceeding in respect of the Obligor that owns such item of Collateral is commenced and the Lien of the First Lien Agent as to such items of Collateral is avoided or determined to be unenforceable. Nothing in this under Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any 547 of the parties heretoBankruptcy Code.
Appears in 1 contract
Sources: Intercreditor Agreement (Oxford Resource Partners LP)