Lien Priorities. Notwithstanding (a) the date, manner or order of filing, recordation, or perfection of the security interests or liens granted in favor of Moriah and the Notes Collateral Agent, (b) any provisions of the UCC, or any applicable law or decision, (c) the provisions of the Moriah Loan Agreements, Noteholder Agreements or any contract between any of the Creditors on one hand, and the Borrower or any affiliate thereof, on the other hand, or (d) whether either Moriah or the Notes Collateral Agent holds possession of all or any part of the Collateral, the following, as between Moriah and the Notes Collateral Agent, shall be the relative priority of the security interests and liens of Moriah and the Notes Collateral Agent in the Collateral: (a) Moriah shall have a first and prior security interest to the extent set forth herein in all Accounts and Inventory as defined in the Section 9-102 of the UCC. The Notes Collateral Agent shall have a second and subordinate security interest in the foregoing property and interests in such property; provided, that, any amount of the Moriah Claim in excess of the Maximum Moriah Debt at any time outstanding (together with the interest on such excess) shall not be entitled to the benefit of the priority of the security interest of Moriah provided for in this Section 2.1(a). (b) The Notes Collateral Agent shall have a first and prior security interest in the remainder of the Collateral that is the subject of the Noteholder Agreements and Moriah shall have a second and subordinate security interest in such Notes Collateral whether now owned or hereafter created by any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest the validity, perfection, priority or enforceability of any lien or security interest heretofore granted to the other Party or granted in connection herewith or contemplated hereby. Notwithstanding any failure of a Party to perfect its security interests in any Collateral or any other defect in any security interests or obligations owing to such Party, the priority and rights as between the parties hereto shall be as set forth herein.
Appears in 6 contracts
Samples: Loan and Security Agreement (Emagin Corp), Loan and Security Agreement (Emagin Corp), Loan and Security Agreement (Emagin Corp)
Lien Priorities. Notwithstanding (a) the date, time, method, manner or order of filinggrant, recordation, attachment or perfection of any Liens securing the security interests Parity Lien Obligations granted on the Collateral or liens of any Liens securing the Priority Lien Obligations granted in favor of Moriah on the Collateral, and the Notes Collateral Agent, (b) notwithstanding any provisions provision of the UCC, or any other applicable law or decisionthe Note Documents or any defect or deficiencies in, or failure to perfect or lapse in perfection of, or avoidance as a fraudulent conveyance or otherwise of, the Liens securing the Priority Lien Obligations or the Parity Lien Obligations, the subordination of such Liens to any other Liens, or any other circumstance whatsoever, whether or not any insolvency or liquidation proceeding has been commenced by or against ION or any Guarantor, (ci) any Lien on the provisions Collateral securing any Priority Lien Obligations now or hereafter held by or on behalf of any Priority Lien Representative, any Priority Lien Collateral Agent or any holders of Priority Lien Debt or any agent or trustee therefor, regardless of how acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be senior in all respects and prior to any Lien on the Collateral securing any Parity Lien Obligations; (ii) any Lien on the Collateral securing any Parity Lien Obligations now or hereafter held by or on behalf of the Moriah Loan Agreements, Noteholder Agreements or any contract between any of the Creditors on one hand, and the Borrower or any affiliate thereof, on the other hand, or (d) whether either Moriah or the Notes Collateral Agent holds possession of all or any part of the CollateralTrustee, the following, as between Moriah and the Notes Collateral Agent, any holders of Parity Lien Debt or any agent or trustee therefor regardless of how acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be the relative priority of the security interests junior and liens of Moriah and the Notes Collateral Agent in the Collateral:
(a) Moriah shall have a first and prior security interest to the extent set forth herein subordinate in all Accounts respects to all Liens on the Collateral securing any Priority Lien Obligations; and Inventory as defined in (iii) any Lien on the Section 9-102 Collateral securing any Excess Priority Lien Obligations now or hereafter held by or on behalf of the UCC. The Notes any Priority Lien Representative, any Priority Lien Collateral Agent Agent, any holder of Priority Lien Debt or any agent or trustee therefor, regardless of how acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall have a second be junior and subordinate security interest in the foregoing property and interests in such property; provided, that, all respects to any amount of the Moriah Claim in excess of the Maximum Moriah Debt at any time outstanding (together with the interest Lien on such excess) shall not be entitled to the benefit of the priority of the security interest of Moriah provided for in this Section 2.1(a).
(b) The Notes Collateral Agent shall have a first and prior security interest in the remainder of the Collateral that is the subject of the Noteholder Agreements and Moriah shall have a second and subordinate security interest in such Notes Collateral whether now owned or hereafter created by securing any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest the validity, perfection, priority or enforceability of any lien or security interest heretofore granted to the other Party or granted in connection herewith or contemplated hereby. Notwithstanding any failure of a Party to perfect its security interests in any Collateral or any other defect in any security interests or obligations owing to such Party, the priority and rights as between the parties hereto shall be as set forth hereinParity Lien Obligations.
Appears in 3 contracts
Samples: Restructuring Support Agreement (Ion Geophysical Corp), Restructuring Support Agreement (Ion Geophysical Corp), Restructuring Support Agreement (Ion Geophysical Corp)
Lien Priorities. Notwithstanding (a) The grant of the Revolver Liens pursuant to the Revolver Documents and the grant of the Term Loan Liens pursuant to the Term Loan Documents create two separate and distinct Liens of equal priority on the Shared Collateral for the equal and ratable benefit of the holders of all previously existing and future Priority Obligations. Notwithstanding the foregoing or anything else to the contrary in this Agreement, the Term Loan Agent hereby acknowledges and agrees (on behalf of the Term Loan Secured Parties) that the Term Loan Secured Parties (and not the Revolver Secured Parties) bear the risk of any determination by a court of competent jurisdiction that (w) the Term Loan Obligations do not constitute “Priority Lien Obligations” under (and as defined in) the Second Lien Intercreditor Agreement, (x) any of the Term Loan Obligations are unenforceable under applicable law or are subordinated to any other obligations (including the Second Lien Obligations (as defined in the Second Lien Intercreditor Agreement)), (y) any of the Term Loan Obligations do not have an enforceable security interest in any of the Shared Collateral securing such Term Loan Obligations and/or (z) any intervening security interest exists securing any other obligations (including the Second Lien Obligations (as defined in the Second Lien Intercreditor Agreement)) on a basis ranking prior to the security interest of such Term Loan Obligations or (any such condition referred to in the foregoing clauses (w), (x), (y) or (z) with respect to any Term Loan Obligations, an “Impairment” of such Term Loan Obligations). In the event of any Impairment with respect to any Term Loan Obligations, the results of such Impairment shall be borne solely by the holders of such Term Loan Obligations, and the rights of the holders of such Term Loan Obligations (including the right to receive distributions in respect of such Term Loan Obligations pursuant to Section 8.01 or the right to equal and ratable liens on the Shared Collateral to the extent the Impairment relates to the Term Loan Liens) set forth herein shall be modified to the extent necessary so that the effects of such Impairment are borne solely by the holders of the Term Loan Obligations subject to such Impairment. The Revolver Agent, on behalf of the Revolver Secured Parties, agrees the Revolver Secured Parties shall not commence or support any judicial proceeding seeking an Impairment.
(b) Subject in all respects to Section 8.01, notwithstanding the date, time, method, manner or order of filinggrant, recordation, attachment or perfection of any Liens securing any Priority Obligations granted on the security interests or liens granted in favor of Moriah Shared Collateral and the Notes Collateral Agent, (b) notwithstanding any provisions provision of the UCCUniform Commercial Code of any jurisdiction, or any other applicable law or decisionthe Priority Debt Documents or any defect or deficiencies in the Liens securing the Priority Obligations or any other circumstance whatsoever, each Priority Secured Party hereby agrees that the Liens securing each Priority Obligation on any Shared Collateral shall be of equal priority.
(c) It is acknowledged that (i) the aggregate amount of the Revolver Obligations may be increased from time to time pursuant to the terms of the Revolver Documents, (ii) a portion of the Revolver Obligations consists or may consist of indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed or refinanced, and (iii) (A) the Revolver Documents may be replaced, restated, supplemented, restructured refinanced or otherwise amended or modified from time to time and (B) the Revolver Obligations may be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, refinanced or otherwise amended or modified from time to time, in the case of the foregoing (A) and (B) all without affecting the payment priorities of the Term Loan Liens hereunder or the provisions of this Agreement defining the Moriah Loan Agreements, Noteholder Agreements or any contract between any relative rights of the Creditors on one hand, Revolver Secured Parties and the Borrower Term Loan Secured Parties. The lien priorities provided for herein shall not be altered or otherwise affected by any affiliate thereofamendment, on modification, supplement, extension, increase, renewal, restatement or Replacement of either the other hand, or Revolver Obligations (d) whether either Moriah or the Notes Collateral Agent holds possession of all or any part thereof) or the Term Loan Obligations (or any part thereof), by the release of the Collateral, the following, as between Moriah and the Notes any Shared Collateral Agent, shall be the relative priority or of the security interests and liens of Moriah and the Notes Collateral Agent in the Collateral:
(a) Moriah shall have a first and prior security interest to the extent set forth herein in all Accounts and Inventory as defined in the Section 9-102 of the UCC. The Notes Collateral Agent shall have a second and subordinate security interest in the foregoing property and interests in such property; provided, that, any amount of the Moriah Claim in excess of the Maximum Moriah Debt at guarantees for any time outstanding (together with the interest on such excess) shall not be entitled to the benefit of the priority of the security interest of Moriah provided for in this Section 2.1(a).
(b) The Notes Collateral Agent shall have a first and prior security interest in the remainder of the Collateral that is the subject of the Noteholder Agreements and Moriah shall have a second and subordinate security interest in such Notes Collateral whether now owned Revolver Obligations or hereafter created by any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest the validity, perfection, priority action that any Priority Debt Representative or enforceability Priority Secured Party may take or fail to take in respect of any lien or security interest heretofore granted to the other Party or granted in connection herewith or contemplated hereby. Notwithstanding any failure of a Party to perfect its security interests in any Collateral or any other defect in any security interests or obligations owing to such Party, the priority and rights as between the parties hereto shall be as set forth hereinShared Collateral.
Appears in 3 contracts
Samples: Collateral Trust Agreement, Term Loan Agreement (Chesapeake Energy Corp), Collateral Trust Agreement (Chesapeake Energy Corp)
Lien Priorities. Notwithstanding Each of the Secured Parties hereby covenants and agrees that:
(a) In accordance with the dateOrders, manner any and all Liens securing Second Priority Obligations with respect to Common Collateral of the applicable Type now existing or hereafter created or arising, regardless of how acquired, whether by grant, pursuant to the Orders, statute, operation of law, subrogation or otherwise, are expressly junior to any and all Liens securing First Priority Obligations with respect to such Common Collateral now existing or hereafter created or arising, notwithstanding (i) anything to the contrary contained in any agreement or filing to which any Secured Party may now or hereafter be a party, and regardless of the time, order or method of filinggrant, recordationattachment, recording or perfection of the any financing statements or other security interests interests, assignments, pledges, deeds, mortgages and other liens, charges or liens granted in favor of Moriah encumbrances and the Notes Collateral Agent, (bii) any provisions provision of the UCC, UCC or any applicable law or decisionany other circumstance whatsoever.
(b) Each Second Priority Secured Party (i) shall be deemed to have consented to any sale by the First Priority Secured Parties, (c) the provisions upon exercise of its Default Remedies, of any Common Collateral of the Moriah Loan Agreements, Noteholder Agreements or any contract between any Type securing the First Priority Obligations and (ii) agrees that without the consent of the Creditors on one handFirst Priority Secured Parties, and the Borrower it will not use or any affiliate thereof, on the other hand, or (d) whether either Moriah or the Notes Collateral Agent holds possession of apply all or any part of the CollateralSecond Priority Obligations to bidding on, the following, as between Moriah and the Notes or making settlement or payment for any Common Collateral Agent, shall be the relative priority of the security interests and liens of Moriah and Type securing the Notes Collateral Agent in Second Priority Obligations, unless the Collateral:
(a) Moriah shall have a first and prior security interest to the extent set forth herein in all Accounts and Inventory as defined in the Section 9-102 of the UCCFirst Lien Obligations are Discharged. The Notes Collateral Agent shall have a second and subordinate security interest in the foregoing property and interests in such property; provided, that, any amount of the Moriah Claim in excess of the Maximum Moriah Debt at any time outstanding (together with the interest on such excess) shall not be entitled to the benefit of the priority of the security interest of Moriah provided for It is understood that nothing in this Section 2.1(a)clause (b) is intended to prohibit any Second Priority Secured Party from exercising any rights expressly granted to it under this Agreement.
(bi) The Notes Collateral Agent Each ABL Secured Party agrees that until the Term Loan Discharge Date shall have a first and occurred, it shall not exercise any Default Remedy, direct or indirect, against any Non-ABL Priority Collateral without the prior security interest in the remainder written consent of the Term Loan Agent and (ii) each Term Loan Secured Party agrees that until the ABL Discharge Date shall have occurred, it shall not exercise any Default Remedy, direct or indirect, against any ABL-Priority Collateral that is without the subject prior written consent of the Noteholder Agreements ABL Agent.
(d) It is understood that Sections 2.1(b) and Moriah (c) do not restrict the DIP Agent for the Second Priority Secured Parties from taking any action (not adverse to the prior Liens securing the First Priority Obligations, or the rights of the DIP Agent for the First Priority Secured Parties to exercise remedies in respect thereof) in order to preserve, perfect or protect its Lien on the Common Collateral securing the Second Priority Secured Parties or in furtherance of its rights under the Orders or this Agreement.
(e) Notwithstanding anything to the contrary in this Agreement, the Liens of the ABL Secured Parties and the Term Loan Secured Parties on the Avoidance Proceeds shall have a second equal priority and subordinate security interest none of the provisions in such Notes Collateral whether now owned this Agreement subordinating or hereafter created by otherwise limiting any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest the validity, perfection, priority or enforceability of any lien or security interest heretofore granted Secured Parties’ rights and remedies with respect to the other Party or granted in connection herewith or contemplated hereby. Notwithstanding any failure of a Party to perfect its security interests in any Common Collateral or any other defect in any security interests or obligations owing to such Party, the priority and rights as between the parties hereto shall be as set forth hereinapplicable with respect to the Liens on the Avoidance Proceeds. Any Avoidance Proceeds received by the First Priority Secured Parties or the Second Priority Secured Parties shall be applied among the ABL Secured Parties and the Term Loan Secured Parties ratably and on a pari passu basis notwithstanding Section 4.
Appears in 2 contracts
Samples: Dip Financing Intercreditor Agreement, Dip Financing Intercreditor Agreement (Momentive Performance Materials Inc.)
Lien Priorities. Notwithstanding Each of the Secured Parties hereby covenants and agrees that:
(a) Any and all Liens securing Junior Obligations with respect to Collateral of the dateapplicable Type now existing or hereafter created or arising, manner regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, are expressly junior to any and all Liens securing Senior Obligations with respect to such Collateral now existing or hereafter created or arising, notwithstanding (1) anything to the contrary contained in any agreement or filing to which any Secured Party may now or hereafter be a party, and regardless of the time, order or method of filinggrant, recordationattachment, recording or perfection of the any financing statements or other security interests interests, assignments, pledges, deeds, mortgages and other liens, charges or liens granted in favor of Moriah encumbrances and the Notes Collateral Agent, (b2) any provisions provision of the UCC, UCC or any applicable law or decision, any other circumstance whatsoever.
(cb) the provisions of the Moriah Loan Agreements, Noteholder Agreements or any contract between any of the Creditors on one handEach Junior Secured Party, and the Borrower Agent in its capacity as administrative agent for any Junior Secured Parties (i) shall be deemed to have consented to any sale by the Agent for the Senior Secured Parties, upon exercise of its Default Remedies, of any Collateral of the Type as to which the selling Agent represents the holders of Senior Obligations and (ii) agrees that without the consent of the Agent for the Senior Secured Parties, it will not use or any affiliate thereof, on the other hand, or (d) whether either Moriah or the Notes Collateral Agent holds possession of apply all or any part of the CollateralJunior Obligations to bidding on, or making settlement or payment for any Collateral of the Type as to which it is holder of Junior Obligations, unless the Senior Obligations are paid in full in cash. It is understood that nothing in this clause (b) is intended to prohibit any Junior Secured Party from exercising any rights expressly granted to it under this Agreement.
(i) Each Revolver Secured Party agrees that until the Term Discharge Date shall have occurred, it shall not exercise any Default Remedy, direct or indirect, against any Term Facility Collateral without the prior written consent of the Term Agent and (ii) each Term Secured Party agrees that until the Revolver Discharge Date shall have occurred, it shall not exercise any Default Remedy, direct or indirect, against any Revolver Collateral without the prior written consent of the Revolver Agent.
(d) It is understood that Sections 2.1(c) and (d) do not restrict the following, as between Moriah and the Notes Collateral Agent, shall be the relative priority of the security interests and liens of Moriah and the Notes Collateral Agent in the Collateral:
(ai) Moriah shall have in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, the Agent for the Junior Secured Parties may file a first and prior security claim or statement of interest with respect to the extent set forth herein in all Accounts and Inventory as defined in the Section 9-102 Collateral of the UCC. The Notes Collateral Type which it holds on their behalf;
(ii) the Agent shall have a second and subordinate security interest in for the foregoing property and interests in such property; providedJunior Secured Parties may take any action (not adverse to the prior Liens securing the Senior Obligations, that, any amount or the rights of the Moriah Claim Agent for the Senior Secured Parties or the Senior Secured Parties to exercise remedies in excess respect thereof) in order to preserve, perfect or protect its Lien on the Collateral which it holds on behalf of the Maximum Moriah Debt at any time outstanding Junior Secured Parties;
(together with iii) the interest on such excess) Junior Secured Parties shall not be entitled to file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the benefit disallowance of the priority claims of the security interest Junior Secured Parties, including without limitation any claims on account of Moriah provided for Senior Obligations secured by the applicable Type of Collateral, if any, in each case in accordance with the terms of this Section 2.1(a).Agreement; and
(biv) The Notes Collateral Agent the Junior Secured Parties shall have a first and prior security interest in the remainder be entitled to file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Collateral that is Grantors arising under either any bankruptcy, insolvency or similar law or applicable non-bankruptcy law, in each case in accordance with the subject terms of the Noteholder Agreements and Moriah shall have a second and subordinate security interest in such Notes Collateral whether now owned or hereafter created by any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest the validity, perfection, priority or enforceability of any lien or security interest heretofore granted to the other Party or granted in connection herewith or contemplated hereby. Notwithstanding any failure of a Party to perfect its security interests in any Collateral or any other defect in any security interests or obligations owing to such Party, the priority and rights as between the parties hereto shall be as set forth hereinthis Agreement.
Appears in 2 contracts
Samples: Debt Agreement (Eastman Kodak Co), Intercreditor Agreement (Eastman Kodak Co)
Lien Priorities. Notwithstanding (ai) The parties hereto hereby agree that, notwithstanding the datetime, manner order or order method of filingcreation, recordation, attachment or perfection of the respective security interests or liens and/or Liens granted in favor of Moriah and the Notes Collateral Agent, (b) any provisions Agents to secure the Obligations or the filing or recording of financing statements or other Security Documents; the validity or enforceability of the UCCsecurity interests and Liens granted in favor of the Collateral Agents or the Revolver Secured Creditors or the Term Secured Creditors; the dating, execution or delivery of any agreement, document or instrument granting any Collateral Agent or Secured Creditor security interests and/or Liens in or on any or all of the property or assets of any pledgor; the date on which any indebtedness is extended; the giving or failure to give notice of the acquisition or expected acquisition of any purchase money or other security interest; any provision of the Uniform Commercial Code, including any rule for determining priority thereunder or under any other law or rule governing the relative priorities of secured creditors, including with respect to real property or fixtures; any provision set forth in any Credit Document; or the possession or control by any Collateral Agent or Secured Creditor or any applicable law or decision, (c) the provisions of the Moriah Loan Agreements, Noteholder Agreements or any contract between any of the Creditors on one hand, and the Borrower or any affiliate thereof, on the other hand, or (d) whether either Moriah or the Notes Collateral Agent holds possession bailee of all or any part of any Collateral as of the Collateraldate hereof or otherwise, (w) the following, as between Moriah and Liens granted on the Notes Revolver First Priority Collateral Agent, under the Revolver Security Documents to secure the Revolver Secured Obligations shall be the relative priority of the security interests and liens of Moriah and the Notes Collateral Agent in the Collateral:
(a) Moriah shall have a first and prior security interest to the extent set forth herein in for all Accounts and Inventory as defined in the Section 9-102 of the UCC. The Notes Collateral Agent shall have a second and subordinate security interest in the foregoing property and interests purposes in such property; providedRevolver First Priority Collateral, that, any amount of (x) the Moriah Claim in excess of Liens granted on the Maximum Moriah Debt at any time outstanding (together with Term First Priority Collateral under the interest on such excess) Term Security Documents to secure the Term Secured Obligations shall not be entitled to the benefit of the priority of the security interest of Moriah provided for in this Section 2.1(a).
(b) The Notes Collateral Agent shall have a first and prior security interest for all purposes in such Term First Priority Collateral, (y) the Liens granted on the Revolver First Priority Collateral under the Term Security Documents to secure the Term Secured Obligations shall be second and subordinated to the Liens granted under the Revolver Security Documents on the Revolver First Priority Collateral and (z) and the Liens granted on the Term First Priority Collateral under the Revolver Security Documents to secure the Revolver Secured Obligations shall be second and subordinated to the Liens granted under the Term Security Documents on the Term First Priority Collateral.
(ii) Notwithstanding the terms of any Credit Documents, in the remainder event of any enforcement of any Liens or in connection with a Bankruptcy Proceeding, all proceeds of Collateral, including the proceeds of any collection, sale or disposition of the Collateral that is the subject of the Noteholder Agreements and Moriah shall have a second and subordinate security interest in such Notes Collateral whether now owned or hereafter created by any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest the validity, perfection, priority or enforceability of any lien or security interest heretofore granted to the other Party or granted portion thereof in connection herewith with the exercise of remedies under the Security Documents or contemplated hereby. Notwithstanding otherwise and any failure of a Party to perfect its security interests in proceeds or recoveries under any Collateral or title insurance policy(ies) insuring any other defect in any security interests or obligations owing to such PartyMortgage, the priority and rights as between the parties hereto shall be as set forth herein.distributed in accordance with the following procedure:
Appears in 2 contracts
Samples: Term Loan Agreement (Texas Petrochemicals Inc.), Revolving Credit Agreement (Texas Petrochemicals Inc.)
Lien Priorities. Notwithstanding (a) the date, time, method, manner or order of filingthe grant, recordationcreation, attachment or perfection of the security interests or liens Liens granted in favor of Moriah to the Revolving Lender and the Notes Collateral AgentTerm Loan Agent on any of the Collateral, (b) and notwithstanding any provisions of the UCC, Uniform Commercial Code or any applicable law or decision, (c) the provisions of Revolving Loan Documents or the Moriah Term Loan Agreements, Noteholder Agreements or any contract between any of Documents to the Creditors on one hand, and the Borrower or any affiliate thereof, on the other handcontrary, or (d) whether either Moriah the Revolving Lender or the Notes Collateral Term Loan Agent holds possession is in possession, custody or “control” of all or any part of the Collateral, and regardless of how any such Lien was acquired (whether by grant, statute, operation of law or otherwise), the following, as between Moriah the Revolving Lender and the Notes Collateral Agentother Revolving Claimholders, on the one hand, and the Term Loan Agent and the other Term Loan Claimholders, on the other hand, shall be the relative priority of the security interests and liens Liens of Moriah the Revolving Lender, on the one hand, and the Notes Collateral Agent in Term Loan Agent, on the other hand, on the Collateral:
(a) Moriah shall have a first and prior security interest with respect to the extent set forth herein Revolving Credit Priority Collateral:
(i) the Liens thereon securing the Revolving Priority Obligations shall be first in all Accounts and Inventory as defined in the Section 9-102 of the UCC. The Notes Collateral Agent shall have a second and subordinate security interest in the foregoing property and interests in such property; providedpriority, that, any amount of the Moriah Claim in excess of the Maximum Moriah Debt at any time outstanding (together with the interest on such excess) shall not be entitled prior to the benefit of Liens thereon securing any other Secured Obligations;
(ii) the priority of Liens thereon securing the security interest of Moriah provided for Term Loan Priority Obligations shall be second in this Section 2.1(apriority, subordinate to the Liens thereon securing the Secured Obligations in clause (a)(i) above but prior to any Liens thereon securing any other Secured Obligations;
(iii) any Liens thereon securing any Revolving Excess Obligations shall be third in priority, subordinate to the Liens thereon securing the Secured Obligations in clauses (a)(i) and (a)(ii) above but prior to any Liens thereon securing any other Secured Obligations; and
(iv) any Liens thereon securing any Term Loan Excess Obligations shall be fourth in priority, subordinate to any Liens thereon securing the Secured Obligations in clauses (a)(i)., (a)(ii) and (a)(iii) above; and
(b) with respect to the Term Loan Priority Collateral:
(i) the Liens thereon securing the Term Loan Priority Obligations shall be first in priority, prior to the Liens thereon securing any other Secured Obligations; \\LA - 765212/000003 - 2075087 v5
(ii) the Liens thereon securing the Revolving Priority Obligations shall be second in priority, subordinate to the Liens thereon securing the Secured Obligations in clause (b)(i) above but prior to any Liens thereon securing any other Secured Obligations;
(iii) any Liens thereon securing any Term Loan Excess Obligations shall be third in priority, subordinate to the Liens thereon securing the Secured Obligations in clauses (b)(i) and (b)(ii) above but prior to any Liens thereon securing any other Secured Obligations; and
(iv) any Liens thereon securing any Revolving Excess Obligations shall be fourth in priority, subordinate to any Liens thereon securing the Secured Obligations in clauses (b)(i), (b)(ii) and (b)(iii) above. The Notes Collateral Agent shall have a first and prior security interest in the remainder priorities of the Collateral that is the subject Liens provided in this Section 2.1 shall not be altered or otherwise affected by any amendment, modification, supplement, extension, renewal, restatement, replacement, refunding or refinancing of the Noteholder Agreements and Moriah shall have a second and subordinate security interest in such Notes Collateral whether now owned Revolving Loan Documents or hereafter created the Revolving Obligations or the Term Loan Documents or the Term Loan Obligations, nor by any action or inaction which the Revolving Lender or any other Revolving Claimholder or the Term Loan PartyAgent or any other Term Loan Claimholder may take or fail to take in respect of any of the Collateral. Neither Moriah nor the Notes Collateral Agent shall The Revolving Lender, for itself and on behalf of each other Revolving Claimholder, agrees that no Revolving Claimholder shall, directly or indirectly, contest or support any other Person in contesting, in any proceeding (including any Insolvency Proceeding), the validity, extent, perfection, priority or enforceability of any lien Liens on any of the Term Loan Priority Collateral or security interest heretofore the other Collateral (to the extent permitted under Section 2.2(b)) granted to the Term Loan Agent to secure the Term Loan Obligations. The Term Loan Agent, for itself and on behalf of each other Party Term Loan Lender, acknowledges and agrees that the Revolving Obligations represent indebtedness that is revolving in nature and that the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed in accordance with terms of the Revolving Loan Documents. The Term Loan Agent, for itself and on behalf of each other Term Loan Claimholder, agrees that no Term Loan Claimholder shall, directly or indirectly, contest or support any other Person in contesting, in any proceeding (including any Insolvency Proceeding), the validity, extent, perfection, priority or enforceability of any Liens on any of the Revolving Credit Priority Collateral or the other Collateral (to the extent permitted under Section 2.2(a)) granted to the Revolving Lender to secure the Revolving Obligations or any assignment of any other rights in connection herewith or contemplated herebyfavor of the Revolving Lender pursuant to the Assignment of Claims Act. Notwithstanding any failure of a Party by either the Revolving Lender, on the one hand, or the Term Loan Agent, on the other hand, to perfect its security interests in Lien on any of the Collateral or any other defect in avoidance, invalidation or subordination by any security interests third party or obligations owing court of competent jurisdiction of any of the Liens on the Collateral granted to such Partythe Revolving Lender or the Term Loan Agent, the priority and rights as between the parties hereto Liens of the Revolving Lender, on the one hand, and the Liens of the Term Loan Agent, on the other hand, shall be as set forth herein. In the event that any Term Loan Claimholder becomes a judgment lien creditor in respect of Collateral as a result of its enforcement of its rights as an unsecured creditor, such judgment lien shall be subject to the terms of this Agreement for all purposes to the same extent as all other Liens securing the Term Loan Obligations are subject to the terms of this Agreement. In the event that any Revolving Claimholder becomes a judgment lien creditor in respect of Collateral as a result of its enforcement of its rights as an unsecured creditor, such judgment lien shall be subject to the terms of this Agreement for all purposes to the same extent as all other Liens securing the Revolving Obligations are subject to the terms of this Agreement.
Appears in 1 contract
Lien Priorities. Notwithstanding (ai) The parties hereto hereby agree that, notwithstanding the datetime, manner order or order method of filingcreation, recordation, attachment or perfection of the respective security interests or liens and/or Liens granted in favor of Moriah and the Notes Collateral Agent, (b) any provisions Agents to secure the Obligations or the filing or recording of financing statements or other Security Documents; the validity or enforceability of the UCCsecurity interests and Liens granted in favor of the Collateral Agents or the First Priority Secured Creditors or the Second Priority Secured Creditors; the dating, execution or delivery of any agreement, document or instrument granting any Collateral Agent or Secured Creditor security interests and/or Liens in or on any or all of the property or assets of any pledgor; the date on which any indebtedness is extended; the giving or failure to give notice of the acquisition or expected acquisition of any purchase money or other security interest; any provision of the Uniform Commercial Code, including any rule for determining priority thereunder or under any other law or rule governing the relative priorities of secured creditors, including with respect to real property or fixtures; any provision set forth in any Loan Document or the Second Priority Senior Notes Indenture or the Second Priority Notes; or the possession or control by any Collateral Agent or Secured Creditor or any applicable law or decision, (c) the provisions of the Moriah Loan Agreements, Noteholder Agreements or any contract between any of the Creditors on one hand, and the Borrower or any affiliate thereof, on the other hand, or (d) whether either Moriah or the Notes Collateral Agent holds possession bailee of all or any part of any Collateral as of the Collateraldate hereof or otherwise, the following, as between Moriah and Liens granted under the Notes Collateral Agent, First Priority Security Documents to secure the First Priority Secured Obligations shall be the relative priority of the security interests and liens of Moriah and the Notes Collateral Agent in the Collateral:
(a) Moriah shall have a first and prior security interest for all purposes and the Liens granted under the Second Priority Security Documents to secure the Second Priority Secured Obligations shall be second and subordinated to the extent set forth herein Liens granted under the First Priority Security Documents.
(ii) Notwithstanding the terms of any First Priority Loan Documents, Second Priority Loan Documents or the Second Priority Senior Notes Indenture, in the event of any enforcement of any Liens or in connection with a Bankruptcy Proceeding, all Accounts proceeds of Collateral, including the proceeds of any collection, sale or disposition of the Collateral or any portion thereof in connection with the exercise of remedies under the Security Documents or otherwise and Inventory any proceeds or recoveries under any title insurance policy(ies) insuring any Mortgage, shall be distributed in accordance with the following procedure:
(x) Such proceeds of the Collateral shall be applied first to the First Priority Secured Obligations (including, without limitation, all interest thereon accruing subsequent to the filing of a bankruptcy case (or that would accrue but for such filing) at the rate provided for in the First Priority Credit Agreement, whether or not such interest is an allowed claim under applicable law) and, after the First Priority Secured Obligations have been Fully Paid, shall be applied to the Second Priority Secured Obligations in accordance with the Second Priority Security Agreement.
(y) In the event that either Collateral Agent receives the proceeds of any Collateral in contravention of the preceding paragraph, it shall hold such proceeds in trust for, and promptly turn over such proceeds (in the same form as received, with any necessary non-recourse endorsement) to the proper Collateral Agent in accordance with the provisions of clause (x) above; provided, however, that in the event any Collateral Agent fails to provide any such endorsement, the applicable Collateral Agent, or any of its officers or employees, is hereby irrevocably authorized to make the same (which authorization, being coupled with an interest, is irrevocable).
(iii) For the avoidance of doubt, it is understood and agreed that the First Priority Collateral Agent may apply proceeds held in the Master Collection Account (as defined in the Section 9-102 First Priority Credit Agreement), any Deposit Account (as defined in the First Priority Credit Agreement) and any Cash Collateral Account (as such term is defined in both the First Priority Security Agreement and the Second Priority Security Agreement) pursuant to and in accordance with the express terms of the UCC. The Notes Collateral Agent shall have a second First Priority Credit Agreement, and subordinate security interest in that the foregoing property and interests in such property; provided, that, any amount of the Moriah Claim in excess of the Maximum Moriah Debt at any time outstanding (together with the interest on such excess) shall not be entitled to the benefit of the priority of the security interest of Moriah mandatory prepayments provided for in this Section 2.1(a).
(b) The Notes Collateral Agent shall have a first and prior security interest in the remainder 4.5 of the Collateral that is the subject First Priority Credit Agreement and Section 4.2 of the Noteholder Agreements and Moriah shall have Second Priority Credit Agreement may be applied in a second and subordinate security interest in manner consistent with the terms of such Notes Collateral whether now owned or hereafter created by any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest the validity, perfection, priority or enforceability of any lien or security interest heretofore granted to the other Party or granted in connection herewith or contemplated hereby. Notwithstanding any failure of a Party to perfect its security interests in any Collateral or any other defect in any security interests or obligations owing to such Party, the priority and rights as between the parties hereto shall be as set forth hereinrespective agreements.
Appears in 1 contract
Samples: Intercreditor Agreement (Huntsman Petrochemical Finance Co)
Lien Priorities. Notwithstanding (ai) The parties hereto hereby agree that, notwithstanding the datetime, manner order or order method of filingcreation, recordation, attachment or perfection of the respective security interests or liens and/or Liens granted in favor of Moriah and the Notes Collateral Agent, (b) any provisions Agents to secure the Obligations or the filing or recording of financing statements or other Security Documents; the validity or enforceability of the UCCsecurity interests and Liens granted in favor of the Collateral Agents or the Revolver Secured Creditors or the Term and Note Secured Creditors; the dating, execution or delivery of any agreement, document or instrument granting any Collateral Agent or Secured Creditor security interests and/or Liens in or on any or all of the property or assets of any pledgor; the date on which any indebtedness is extended; the giving or failure to give notice of the acquisition or expected acquisition of any purchase money or other security interest; any provision of the Uniform Commercial Code, including any rule for determining priority thereunder or under any other law or rule governing the relative priorities of secured creditors, including with respect to real property or fixtures; any provision set forth in any Loan Document or the Senior Secured Notes Indenture or the Senior Secured Notes; or the possession or control by any Collateral Agent or Secured Creditor or any applicable law or decision, (c) the provisions of the Moriah Loan Agreements, Noteholder Agreements or any contract between any of the Creditors on one hand, and the Borrower or any affiliate thereof, on the other hand, or (d) whether either Moriah or the Notes Collateral Agent holds possession bailee of all or any part of any Collateral as of the Collateraldate hereof or otherwise, (w) the following, as between Moriah and Liens granted on the Notes Revolver First Priority Collateral Agent, under the Revolver Security Documents to secure the Revolver Secured Obligations shall be the relative priority of the security interests and liens of Moriah and the Notes Collateral Agent in the Collateral:
(a) Moriah shall have a first and prior security interest to the extent set forth herein in for all Accounts and Inventory as defined in the Section 9-102 of the UCC. The Notes Collateral Agent shall have a second and subordinate security interest in the foregoing property and interests purposes in such property; providedRevolver First Priority Collateral, that, any amount of (x) the Moriah Claim in excess of Liens granted on the Maximum Moriah Debt at any time outstanding (together with Term and Note First Priority Collateral under the interest on such excess) Term and Note Security Documents to secure the Term and Note Secured Obligations shall not be entitled to the benefit of the priority of the security interest of Moriah provided for in this Section 2.1(a).
(b) The Notes Collateral Agent shall have a first and prior security interest for all purposes in such Term and Note First Priority Collateral, (y) the Liens granted on the Revolver First Priority Collateral under the Term and Note Security Documents to secure the Term and Note Secured Obligations shall be second and subordinated to the Liens granted under the Revolver Security Documents on the Revolver First Priority Collateral and (z) and the Liens granted on the Term and Note First Priority Collateral under the Revolver Security Documents to secure the Revolver Secured Obligations shall be second and subordinated to the Liens granted under the Term and Note Security Documents on the Term and Note First Priority Collateral.
(ii) Notwithstanding the terms of any Revolver Loan Documents, Term Loan Documents or the Senior Secured Notes Indenture, in the remainder event of any enforcement of any Liens or in connection with a Bankruptcy Proceeding, all proceeds of Collateral, including the proceeds of any collection, sale or disposition of the Collateral that is or any portion thereof in connection with the subject exercise of remedies under the Security Documents or otherwise and any proceeds or recoveries under any title insurance policy(ies) insuring any Mortgage, shall be distributed in accordance with the following procedure:
(x) Such proceeds of the Noteholder Agreements Revolver First Priority Collateral shall be applied first to the Revolver Secured Obligations (including, without limitation, all interest thereon accruing subsequent to the filing of a bankruptcy case (or that would accrue but for such filing) at the rate provided for in the Revolving Credit Agreement, whether or not such interest is an allowed claim under applicable law) in accordance with Section 8.4 of the Revolver Security Agreement and, after the Revolver Secured Obligations have been Fully Paid, shall be applied to the Term and Moriah Note Secured Obligations in accordance with Section 8.4 of the Term and Note Security Agreement;
(y) Such proceeds of the Term and Note First Priority Collateral shall be applied first to the Term and Note Secured Obligations (including, without limitation, all interest thereon accruing subsequent to the filing of a bankruptcy case (or that would accrue but for such filing) at the rate provided for in the Term Credit Agreement, whether or not such interest is an allowed claim under applicable law) in accordance with Section 8.4 of the Term and Note Security Agreement; and, after the Term and Note Secured Obligations have a second and subordinate security interest been Fully Paid, shall be applied to the Revolver Secured Obligations in such Notes Collateral whether now owned or hereafter created by accordance with Section 8.4 of the Revolver Security Agreement; and
(z) In the event that any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest receives the validity, perfection, priority or enforceability proceeds of any lien or security interest heretofore granted Collateral in contravention of the preceding paragraphs (x) and (y), it shall hold such proceeds in trust for, and promptly turn over such proceeds (in the same form as received, with any necessary non-recourse endorsement) to the other Party or granted proper Collateral Agent in connection herewith or contemplated hereby. Notwithstanding any failure accordance with the provisions of a Party to perfect its security interests clause (x) and (y) above; provided, however, that in the event any Collateral Agent fails to provide any such endorsement, the applicable Collateral Agent, or any other defect of its officers or employees, is hereby irrevocably authorized to make the same (which authorization, being coupled with an interest, is irrevocable).
(iii) For the avoidance of doubt, it is understood and agreed that the Revolver Collateral Agent may apply proceeds held in the Master Collection Account (as defined in the Revolving Credit Agreement) and any security interests or obligations owing Deposit Account (as defined in the Revolving Credit Agreement) pursuant to and in accordance with the express terms of the Revolving Credit Agreement, and that the mandatory prepayments provided for in Section 4.5 of the Revolving Credit Agreement and Section 4.2 of the Term Credit Agreement may be applied in a manner consistent with the terms of such Party, the priority and rights as between the parties hereto shall be as set forth hereinrespective agreements.
Appears in 1 contract
Lien Priorities. SECTION 2.01. Relative Priorities Notwithstanding the time, manner, order or method of grant, creation, attachment or perfection of any Junior Lien or any Senior Lien, and notwithstanding any provision of the UCC or any other applicable law, the provisions of any Security Document or any other Debt Document, any defect or deficiency or alleged deficiency in any of the foregoing or any other circumstance whatsoever, each Representative, for itself and on behalf of its respective Secured Parties, hereby agrees that, until the Senior Discharge Date, (a) any Senior Lien now or hereafter held by or for the datebenefit of any Credit Facility Secured Party shall be senior in right, manner or order of filingpriority, recordationperfection, or perfection of the security interests or liens granted in favor of Moriah operation, effect and the Notes Collateral Agent, all other respects to any and all Junior Liens and (b) any provisions Junior Lien now or hereafter held by or for the benefit of the UCCany Indenture Secured Party shall be junior and subordinate in right, or priority, operation, effect and all other respects to any applicable law or decisionand all Senior Liens, (c) the provisions of the Moriah Loan Agreements, Noteholder Agreements or any contract between any of the Creditors on one hand, and the Borrower or any affiliate thereofin each case, on the terms set forth herein. Until the Senior Discharge Date, the Senior Liens shall be and remain senior in right, priority, operation, effect and all other handrespects to any Junior Liens for all purposes, in each case, on the terms set forth herein, whether or (d) whether either Moriah or the Notes Collateral Agent holds possession not any Senior Liens are subordinated in any respect to any other Lien securing any other obligation of all any Grantor or any part of the Collateralother Person and whether or not any such Liens are voided, the followingavoided, as between Moriah and the Notes Collateral Agentinvalidated, shall be the relative priority of the security interests and liens of Moriah and the Notes Collateral Agent in the Collateral:
lapsed or unperfected. Except with respect to Permitted Liens (a) Moriah shall have a first and prior security interest to the extent set forth herein in all Accounts and Inventory as defined in the Section 9-102 Amended Credit Agreement as in effect on the date hereof), the Administrative Agent agrees not to subordinate, or otherwise voluntarily relinquish the benefits of, its Senior Lien in any Credit Facility Collateral to the Lien, indebtedness or claim of any other creditor of AGI, Holdings, any Borrower or any Grantor or any Guarantor without the prior written consent of the UCC. The Notes Collateral Indenture Agent shall have a second and subordinate security interest in (acting at the foregoing property and interests in such property; provided, that, any amount written direction of the Moriah Claim requisite Note Holders in excess accordance with the terms of the Maximum Moriah Debt at any time outstanding (together with the interest on such excess) shall not be entitled to the benefit of the priority of the security interest of Moriah provided for in this Section 2.1(aIndenture).
(b) The Notes Collateral Agent shall have a first and prior security interest in the remainder of the Collateral that is the subject of the Noteholder Agreements and Moriah shall have a second and subordinate security interest in such Notes Collateral whether now owned or hereafter created by any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest the validity, perfection, priority or enforceability of any lien or security interest heretofore granted to the other Party or granted in connection herewith or contemplated hereby. Notwithstanding any failure of a Party to perfect its security interests in any Collateral or any other defect in any security interests or obligations owing to such Party, the priority and rights as between the parties hereto shall be as set forth herein.
Appears in 1 contract
Samples: Intercreditor Agreement (Affinity Guest Services, LLC)
Lien Priorities. Notwithstanding (a) the date, manner or order of filing, recordation, or perfection of the security interests or and liens granted in favor of Moriah to the Administrative Agent and the Trustee or the Notes Collateral Agent, (b) and notwithstanding any provisions of the UCCUniform Commercial Code, or any applicable law or decision, (c) decision or the provisions of Senior Lender Documents or the Moriah Loan Agreements, Senior Noteholder Agreements or any contract between any of the Creditors on one hand, and the Borrower or any affiliate thereof, on the other handDocuments, or (d) whether either Moriah the Administrative Agent or the Trustee or the Notes Collateral Agent holds possession of all or any part of the Collateral, the following, as between Moriah the Administrative Agent, on the one hand, and the Trustee and the Notes Collateral Agent, on the other hand, shall be the relative priority of the security interests and liens of Moriah the Administrative Agent, on the one hand, and the Trustee and the Notes Collateral Agent Agent, on the other hand, in the Collateral:
(a) Moriah The Administrative Agent shall have a first and prior security interest to the extent set forth herein in all Accounts and Inventory as defined in the Section 9-102 of Senior Lender Priority Collateral and the UCC. The Trustee and the Notes Collateral Agent shall have a second and subordinate security interest in the foregoing property and interests in such propertySenior Lender Priority Collateral; provided, that, any amount of the Moriah Claim in excess of the Maximum Moriah Debt at any time outstanding (together with the interest on such excess) shall not be entitled to the benefit of the priority of the security interest of Moriah provided for in this Section 2.1(a).and
(b) The Trustee and the Notes Collateral Agent shall have a first and prior security interest in the remainder of Senior Noteholder Priority Collateral and the Collateral that is the subject of the Noteholder Agreements and Moriah Administrative Agent shall have a second and subordinate security interest in the Senior Noteholder Priority Collateral. Without limiting the generality of the foregoing, with respect to any and all intercompany notes that constitute part of the Senior Lender Priority Collateral, regardless of whether Parent, another Borrower or another Loan Party is the obligor on any such Notes Collateral intercompany note and regardless of whether now owned any such intercompany note is subordinated to the Senior Lender Obligations and/or the Senior Noteholder Obligations, any and all payments thereunder or hereafter created by any Loan Party. Neither Moriah nor proceeds thereof shall be distributed first to the Administrative Agent until the Senior Lender Obligations shall have been Paid in Full and the remaining balance to the Notes Collateral Agent for application in accordance with the Senior Noteholder Documents. Neither the Administrative Agent, on the one hand, nor the Trustee, or the Notes Collateral Agent, on the other hand, shall contest contest, or support any other Person in contesting, in any proceeding (including without limitation, any Insolvency Proceeding), the validity, extent, perfection, priority or enforceability of any lien or security interest heretofore in the Collateral granted to the other Party or granted in connection herewith or contemplated herebyother. Notwithstanding any failure of a Party by either the Administrative Agent, on the one hand, or the Trustee or the Notes Collateral Agent, on the other hand, to perfect its security interests in any the Collateral or any other defect in avoidance, invalidation or subordination by any third party or court of competent jurisdiction of the security interests in the Collateral granted to the Administrative Agent, the Trustee or obligations owing to such Partythe Notes Collateral Agent, the priority and rights as between the parties hereto Administrative Agent, on the one hand, and the Trustee and the Notes Collateral Agent, on the other hand, shall be as set forth herein.
Appears in 1 contract
Lien Priorities. Notwithstanding (a) the date, manner or order of filing, recordation, attachment or perfection of the security interests or and liens granted in favor to WFBC or Bank of Moriah Atchison by Borrower and the Notes Collateral Agent, (b) notwithstanding any provisions of the UCCUniform Commercial Code, the United States Bankruptcy Code (the “Bankruptcy Code”) or any applicable law or decision, (c) decision or the provisions WFBC Agreements or the Bank of the Moriah Loan Xxxxxxxx Agreements, Noteholder Agreements or any contract between any whether WFBC or Bank of the Creditors on one hand, and the Borrower or any affiliate thereof, on the other hand, or (d) whether either Moriah or the Notes Collateral Agent Atchison holds possession of all or any part of the Collateral, the following, as between Moriah WFBC and the Notes Collateral AgentBank of Xxxxxxxx, shall be the relative priority of the security interests and liens of Moriah WFBC and the Notes Collateral Agent Bank of Xxxxxxxx in the Collateral:
(a) Moriah WFBC shall have a first and prior security interest to the extent set forth herein and lien in all Accounts and Inventory as defined in the Section 9-102 of the UCC. The Notes Collateral Agent shall have a second and subordinate security interest in the foregoing property and interests in such propertycollateral described on Schedule 2.1(a) hereto (the “WFBC Senior Collateral”); provided, that, any amount of the Moriah Claim in excess of the Maximum Moriah Debt at any time outstanding (together with the interest on such excess) shall not be entitled to the benefit of the priority of the security interest of Moriah provided for in this Section 2.1(a).and
(b) The Notes Collateral Agent Bank of Atchison shall have a first and prior security interest in all property and collateral described on Schedule 2.1(b) hereto (the remainder “Bank of the Collateral that is the subject of the Noteholder Agreements and Moriah Xxxxxxxx Senior Collateral”).
(c) WFBC shall have a second and subordinate junior security interest in all property and collateral described on Schedule 2.1(c) hereto (“WFBC Junior Collateral”).
(d) The priorities established hereunder are only as between WFBC and Bank of Atchison and to the extent that the operation of the foregoing provisions would otherwise entitle any other person (including a trustee in bankruptcy) to either a priority over the parties herein or a right to avoid the lien of the other Party, then (and only to such Notes extent) this paragraph shall be null and void and WFBC and Bank of Xxxxxxxx shall, from the proceeds received from the other Party’s senior Collateral, sell and/or purchase participation interests in the WFBC Claim or the Bank of Atchison Claim to effectuate, to the maximum extent possible, the allocative purposes of this Section 2.1 and to maximize the recovery for WFBC with respect to WFBC Senior Collateral whether now owned and Bank of Atchison with respect to the Bank of Atchison Senior Collateral in accordance with and pursuant to the other terms and provisions of this Agreement.
(e) Each Party agrees it will execute any and all agreements and documents which the other Party may reasonably request to evidence the subordination and priority of liens and security interests as established by this Section 2.1 in this Agreement.
(g) Subject only to the relative priorities set forth in this Section 2.1 (including without limitation, the provisions of subsection 2.1(d)), each of the Parties agrees that it will not contest or hereafter created by any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest challenge the validity, perfectionlegality, priority enforceability, perfection or enforceability avoidability of any lien or the respective security interest heretofore granted in, rights or lien of the other Party as set forth in Sections 2.1(a), (b), and (c) above on the Collateral (or any other collateral) of the other Party in any proceeding for any reason. Each Party acknowledges that a breach of this covenant is likely to cause irreparable harm to the other Party or granted in connection herewith or contemplated hereby. Notwithstanding any failure of a Party to perfect its security interests in any Collateral or any other defect in any security interests or obligations owing to such Party, the priority and rights as between the parties hereto shall be as set forth hereinspecifically enforceable.
Appears in 1 contract
Lien Priorities. Notwithstanding (ai) The parties hereto hereby agree that, notwithstanding the datetime, manner order or order method of filingcreation, recordation, attachment or perfection of the respective security interests or liens and/or Liens granted in favor of Moriah the Collateral Agents to secure the Obligations or the filing or recording of financing statements or other Security Documents; the validity or enforceability of the security interests and Liens granted in favor of the Collateral Agents or the Secured Creditors; the dating, execution or delivery of any agreement, document or instrument granting any Collateral Agent or Secured Creditor security interests and/or Liens in or on any or all of the property or assets of any pledgor; the date on which any indebtedness is extended; the giving or failure to give notice of the acquisition or expected acquisition of any purchase money or other security interest; any provision of the Uniform Commercial Code, including any rule for determining priority thereunder or under any other law or rule governing the relative priorities of secured creditors, including with respect to real property or fixtures; any provision set forth in any Loan Document or the Senior Secured Notes Indenture or the Senior Secured Notes; or the possession or control by any Collateral Agent or Secured Creditor or any bailee of all or any part of any Collateral as of the date hereof or otherwise, the Liens granted on the Collateral under the Security Documents to secure the Obligations shall at all times secure the Bank Obligations and the Senior Secured Note Obligations on a pari passu basis.
(ii) Notwithstanding the terms of any Loan Document or the Senior Secured Notes Indenture, in the event of any enforcement of any Liens or in connection with a Bankruptcy Proceeding, all proceeds of Collateral, including the proceeds of any collection, sale or disposition of the Collateral or any portion thereof in connection with the exercise of remedies under the Security Documents or otherwise and any proceeds or recoveries under any title insurance policy(ies) insuring any Mortgage, shall be distributed in accordance with Section 8.5 of the Security Agreement.
(iii) In the event that the Administrative Agent or the Senior Secured Note Trustee receives the proceeds of any Collateral in contravention of the preceding paragraph (ii), it shall hold such proceeds in trust for, and promptly turn over such proceeds (in the same form as received, with any necessary non-recourse endorsement) to the proper Person in accordance with the provisions of clause (ii) above; provided, however, that in the event such Person fails to provide any such endorsement, the Administrative Agent, (b) any provisions of or the UCCSenior Secured Notes Trustee, as the case may be, or any applicable law of its respective officers or decisionemployees, is hereby irrevocably authorized to make the same (cwhich authorization, being coupled with an interest, is irrevocable).
(iv) Each of the parties hereto acknowledges that the Lien priorities provided in this Agreement shall not be affected or impaired in any manner whatsoever, including, without limitation, on account of (A) the provisions of the Moriah Loan Agreementsinvalidity, Noteholder Agreements irregularity or any contract between any of the Creditors on one hand, and the Borrower or any affiliate thereof, on the other hand, or (d) whether either Moriah or the Notes Collateral Agent holds possession unenforceability of all or any part of the CollateralLoan Documents, the followingSenior Secured Notes Indenture or the Senior Secured Notes; (B) any amendment, as between Moriah and change or modification of any Loan Document, the Senior Secured Notes Collateral AgentIndenture or the Senior Secured Notes; or (C) any impairment, shall be the relative priority modification, change, exchange, release or subordination of the security interests and liens of Moriah and the Notes Collateral Agent in the Collateral:
(a) Moriah shall have a first and prior security interest to the extent set forth herein in all Accounts and Inventory as defined in the Section 9-102 of the UCC. The Notes Collateral Agent shall have a second and subordinate security interest in the foregoing property and interests in such property; provided, thator limitation on, any amount liability of, or stay of the Moriah Claim actions or lien enforcement proceedings against, any Credit Party, its property, or its estate in excess of the Maximum Moriah Debt at bankruptcy resulting from any time outstanding (together with the interest on such excess) shall not be entitled to the benefit of the priority of the security interest of Moriah provided for in this Section 2.1(a)bankruptcy, arrangement, readjustment, composition, liquidation, rehabilitation, similar proceeding or otherwise involving or affecting any Credit Party.
(b) The Notes Each Collateral Agent shall have a first hereby appoints each other as agent for purposes of perfecting its respective security interests, Liens and prior security interest claims in the remainder Collateral (in each case, whether such Collateral was delivered to the Bank and Note Collateral Agent or the Mortgagee, as the case may be, prior to, on or after the date hereof), in each case to the extent that such perfection may be obtained by possession or control and hereby acknowledges that it holds possession of such Collateral, including, without limitation, any instruments, for the benefit of the other Collateral that is the subject of the Noteholder Agreements and Moriah Agent.
(c) The parties hereto shall have a second and subordinate security interest not challenge or question in such Notes Collateral whether now owned or hereafter created by any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest proceeding the validity, perfection, priority or enforceability of this Agreement, as a whole, or any lien term or security interest heretofore granted provision contained herein or the validity or enforceability of any Lien, Mortgage or financing statement in favor of any Collateral Agent or the relative priority of any such Lien or Mortgage.
(d) In the event of any Refinancing of the Bank Obligations, the Senior Secured Notes Trustee, for itself and the Senior Secured Noteholders, does hereby confirm (and, upon request, agrees to reconfirm at any time) the continued applicability of the provisions hereof, including the pari passu nature of the Liens securing the Senior Secured Notes Obligations and the Liens securing any Bank Obligations incurred or refinanced as a result of such Refinancing. In connection with any Refinancing of all or any portion of the Secured Obligations prior to the other Party or granted in connection herewith or contemplated hereby. Notwithstanding any failure occurrence of a Party Bankruptcy Event, the Senior Secured Notes Trustee, on behalf of itself and each Senior Secured Noteholder, shall, if requested by Borrower or the existing or new holders of the Bank Obligations, execute an intercreditor agreement or amend and restate this Agreement in a manner that is substantially similar to perfect its this Agreement with the lenders under such Refinancing.
(e) [Reserved].
(f) The Senior Secured Notes Trustee, on behalf of itself and the Senior Secured Noteholders, hereby waives any requirement on the part of the Bank and Note Collateral Agent or the Lenders in respect of marshalling of assets constituting Collateral upon any exercise of remedies by the Bank and Note Collateral Agent or the Bank Secured Creditors and, except as expressly set forth herein, any requirement that the Bank and Note Collateral Agent or any Bank Secured Creditor exercise remedies with respect to collateral security interests for the Obligations in any particular order or any particular manner.
(g) Nothing in this Agreement shall relieve any Assignor from the performance of any term, covenant, condition or agreement on such Assignor’s part to be performed or observed under or in respect of any of the Collateral pledged by it or from any liability to any Person under or in respect of any of such Collateral or impose any obligation on any Collateral Agent to perform or observe any such term, covenant, condition or agreement on such Assignor’s part to be so performed or observed or impose any liability on any Collateral Agent for any act or omission on the part of such Assignor relative thereto or for any breach of any representation or warranty on the part of such Assignor contained in this Agreement or any other defect Loan Document or the Senior Secured Notes Indenture, or in any security interests or respect of the Collateral pledged by it. The obligations owing to of each Assignor described in this paragraph shall survive the termination of this Agreement and the discharge of such Party, the priority and rights as between the parties hereto shall be as set forth hereinAssignor’s other obligations hereunder.
Appears in 1 contract
Samples: Intercreditor Agreement (Huntsman International LLC)
Lien Priorities. Notwithstanding (a) the date, manner or order of filing, recordation, recording of the Collateral Documents or the perfection of the liens and security interests or liens granted in favor of Moriah to the Second Note Trustee and the Notes Collateral AgentVEBA Trustee, (b) and notwithstanding any provisions of the UCCUniform Commercial Code, the Second Note Indenture or the VEBA Agreement, or any applicable law or decision, (c) or whether the provisions of the Moriah Loan Agreements, Noteholder Agreements or any contract between any of the Creditors on one hand, and the Borrower or any affiliate thereof, on the other hand, or (d) whether either Moriah Second Note Trustee or the Notes Collateral Agent VEBA Trustee holds possession of all or any part of the CollateralCollateral (i) at all times that any of the First Notes remain outstanding, the following, as between Moriah lien on and the Notes Collateral Agent, shall be the relative priority of the security interests and liens of Moriah and the Notes Collateral Agent in the Collateral:
(a) Moriah shall have a first and prior security interest to the extent set forth herein in all Accounts and Inventory as defined in the Section 9-102 of the UCC. The Notes Collateral Agent shall have a second and subordinate security interest in the foregoing property and interests in such property; provided, that, any amount of the Moriah Claim in excess of the Maximum Moriah Debt at any time outstanding (together with the interest on such excess) shall not be entitled Collateral granted to the benefit of VEBA Trustee shall be deemed, without further action by any party hereto, to constitute, subject to the terms hereof, a second priority of the security interest of Moriah provided for in this Section 2.1(a).
(b) The Notes Collateral Agent shall have a first lien on and prior security interest in the remainder of Collateral, pari passu with the Collateral that is the subject of the Noteholder Agreements lien on and Moriah shall have a second and subordinate security interest in such Notes the Collateral whether now owned or hereafter created by any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest the validity, perfection, priority or enforceability of any lien or security interest heretofore granted to the other Party or granted in connection herewith or contemplated hereby. Notwithstanding any failure Second Note Trustee and (ii) at such time as none of a Party to perfect its security interests in any Collateral or any other defect in any security interests or obligations owing to such Partythe First Notes remain outstanding, the lien on and security interest in the Collateral granted to the Second Note Trustee shall constitute, without further action by any party hereto, a first priority lien on and rights as between security interest therein and the parties hereto lien on and security interest in the Collateral granted to the VEBA Trustee shall be as constitute, without further action by any party hereto, a second priority lien on and security interest therein, subject and subordinate in all respects to the lien and security interest granted to the Second Note Trustee. Second Note Trustee agrees that it shall, at the request of the VEBA Trustee, execute and deliver any agreement or instrument reasonably requested to confirm the lien priorities set forth herein. The Company agrees that it shall, at the request of the Second Note Trustee, execute and deliver, and/or direct the VEBA Trustee to execute and deliver, any agreement or instrument reasonably requested to confirm the lien priorities set forth herein.
Appears in 1 contract
Lien Priorities. Notwithstanding (a) the date, time, manner or order of filinggrant, recordation, attachment or perfection of any Liens granted to the security interests Pre-Petition Agent or liens the Pre-Petition Lenders on the Common Collateral or of any Liens granted in favor of Moriah and to the Notes DIP Agent, the DIP Lenders or to the Collateral Agent, (b) on the Common Collateral and notwithstanding any provisions provision of the UCC, or any applicable law in any jurisdiction, the Pre-Petition Lender Documents, the DIP Lender Documents or decisionany other circumstance whatsoever, (c) the provisions Pre-Petition Agent, on behalf of itself and each of the Moriah Loan AgreementsPre-Petition Lenders, Noteholder Agreements or any contract between any of the Creditors on one hand, and the Borrower or any affiliate thereof, on the other hand, or (d) whether either Moriah or the Notes Collateral Agent holds possession of all or any part of the Collateral, the following, as between Moriah and the Notes Collateral Agent, shall be the relative priority of the security interests and liens of Moriah and the Notes Collateral Agent in the Collateralhereby agrees that:
(a) Moriah shall have a first any Lien on the Common Collateral securing the DIP Lender Claims now or hereafter held by the DIP Agent or the DIP Lenders (including any proceeds held by the Escrow Agent and prior security interest to any Lien held by the extent set forth herein in all Accounts and Inventory as defined in the Section 9-102 of the UCC. The Notes Collateral Agent shall have a second and subordinate security interest in the foregoing property and interests in such property; provided, that, any amount of the Moriah Claim in excess of the Maximum Moriah Debt at any time outstanding (together with the interest on such excess) shall not be entitled to for the benefit of the priority of DIP Lenders) shall be senior and prior to any Lien on the security interest of Moriah provided for in this Section 2.1(a).Common Collateral securing the Non-Stayed Pre-Petition Lender Claims; and
(b) The Notes any Lien on the Common Collateral Agent shall have a first and prior security interest in the remainder of the Collateral that is the subject of the Noteholder Agreements and Moriah shall have a second and subordinate security interest in such Notes Collateral whether now owned or hereafter created held by the Pre-Petition Agent or the Pre-Petition Lenders regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior in all respects to all Liens on the Common Collateral securing the DIP Lender Claims. All Liens on the Common Collateral securing the DIP Lender Claims shall be and remain senior to all Liens on the Common Collateral securing the Non-Stayed Pre-Petition Lender Claims for all purposes, whether or not such Liens securing the DIP Lender Claims are junior to any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest the validity, perfection, priority or enforceability Lien securing any other obligation of any lien Existing Foreign Subsidiary or security interest heretofore granted to the other Party or granted in connection herewith or contemplated hereby. Notwithstanding any failure of a Party to perfect its security interests in any Collateral or any other defect in any security interests or obligations owing to such Party, the priority and rights as between the parties hereto shall be as set forth hereinDomestic Non-Debtor.
Appears in 1 contract
Samples: Intercreditor and Subordination Agreement (Exide Corp)
Lien Priorities. Notwithstanding (a) Each Representative hereby (i) acknowledges that the Grantors (x) have granted or will grant Liens on the Collateral in favor of the Term Loan Agent (for the benefit of itself and/or the other Term Loan Secured Parties) to secure the Term Loan Obligations, (y) have granted or will grant Liens on the Collateral in favor of the Intermediation Facility Secured Parties to secure the Intermediation Facility Obligations and (z) have granted or will grant Liens on the Collateral in favor of the Renewables Intermediation Facility Secured Parties to secure the Renewables Intermediation Facility Obligations. Notwithstanding anything to the contrary herein or any Finance Document, any and all Liens now existing or hereafter created or arising, regardless of how or when acquired, whether by grant, statute, operation of law, subrogation or otherwise, are expressly, and shall remain, junior in priority, operation and effect to any and all First Priority Liens now existing or hereafter created or arising, notwithstanding (i) the date, time, method, manner or order of filinggrant, recordationattachment, or perfection of any Liens granted to any Secured Party in respect of all or any portion of the security interests Collateral, (ii) the order or liens granted time of filing or recordation of any document or instrument for perfecting the Liens in favor of Moriah and the Notes Collateral Agentany Secured Party in any Collateral, (biii) any provisions provision of the UCC, or any other applicable law or decision, (c) the provisions of the Moriah Loan Agreements, Noteholder Agreements or any contract between any of the Creditors on one handFinance Documents, and (iv) whether the Borrower or Liens securing any affiliate thereofof the Secured Obligations are valid, on the other handenforceable, void, avoidable, subordinated, disputed, or allowed, (dv) whether either Moriah any Term Loan Agent, Intermediation Facility Secured Party or the Notes Collateral Agent holds possession of Renewables Intermediation Facility Secured Party, in each case directly or through agents, has control over all or any part portion of the Collateral, the following(vi) any defect or deficiencies in, as between Moriah and the Notes Collateral Agent, shall be the relative priority or non-perfection or alleged or purported defect or deficiency in any of the security interests and liens of Moriah and the Notes Collateral Agent foregoing (including any failure to perfect or lapse in the Collateral:
perfection), setting aside, Re-Characterization, or avoidance (aincluding as a fraudulent conveyance or otherwise) Moriah shall have a first and prior security interest to the extent set forth herein in all Accounts and Inventory as defined in the Section 9-102 of the UCC. The Notes Collateral Agent shall have a second and subordinate security interest in the foregoing property and interests in such property; provided, thatof, any amount Lien, or (vii) the fact that any such First Priority Liens are (x) subordinated to any Lien securing any obligation of the Moriah Claim any Grantor or (y) otherwise subordinated, voided, avoided, invalidated or lapsed in excess of the Maximum Moriah Debt at any time outstanding (together with the interest on such excess) shall not be entitled to the benefit of the priority of the security interest of Moriah provided for in this Section 2.1(a)manner.
(b) The Notes Collateral Agent No Secured Party shall have a first and prior security interest object to or contest, or support any other Person in the remainder of the Collateral that is the subject of the Noteholder Agreements and Moriah shall have a second and subordinate security interest contesting or objecting to, in such Notes Collateral whether now owned or hereafter created by any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest proceeding (including any Insolvency Proceeding), the validity, extent, perfection, priority or enforceability of any lien or security interest heretofore Lien on the Collateral granted to any other Secured Party to secure any Secured Obligations. No Secured Party shall take, or cause to be taken, any action the purpose of which is to make any other Lien pari passu with or senior to the First Priority Lien. Nothing in this Section 2.01(b) shall be construed to prevent or impair the rights of any party hereto to enforce the terms of this Agreement, or in accordance with the terms of this Agreement, any of the Finance Documents, or to prohibit any Secured Party or from exercising any rights expressly granted in connection herewith or contemplated hereby. to it under this Agreement.
(c) Notwithstanding any failure of a by any Secured Party to perfect its any Lien on the Collateral securing Secured Obligations or any avoidance, setting aside, Re-Characterization, invalidation or subordination by any third party or court of competent jurisdiction of the security interests in any the Collateral or any other defect in any security interests or obligations owing granted to such PartySecured Party to secure any Secured Obligations, the priority and rights as between among the parties hereto Secured Parties with respect to the Collateral shall be as set forth herein.
(d) Nothing in this Agreement shall affect the right of (i) any Secured Party to receive payments of interest, principal and other required amounts in respect of their respective Secured Obligations, unless the payment or receipt of amounts or performance thereof is expressly prohibited by this Agreement or any of the Finance Documents pursuant to which it is acting as a Secured Party, (ii) the Intermediation Facility Secured Parties to (A) require performance from the Company pursuant to the Intermediation Facility Documents, from Parent pursuant to the Intermediation Facility Parent Guaranty or from Renewables Company pursuant to the Intermediation Facility Guaranty or (B) terminate the commitments and/or other arrangements under the Intermediation Facility Documents in accordance therewith, in each case of this clause (ii) unless such performance or termination and/or other arrangements is expressly prohibited by this Agreement or any of the Intermediation Facility Documents, (iii) the Renewables Intermediation Facility Secured Parties to (A) require performance from the Renewables Company pursuant to the Renewables Intermediation Facility Documents, from Parent pursuant to the Renewables Intermediation Facility Parent Guaranty or from the Company pursuant to the Renewables Intermediation Facility Guaranty or (B) terminate the commitments and/or other arrangements under the Renewables Intermediation Facility Documents in accordance therewith, in each case of this clause (iii) unless such performance or termination and/or other arrangements is expressly prohibited by this Agreement or any of the Renewables Intermediation Facility Documents or (iv) the Term Loan Agent (or any other Term Loan Secured Party) to (A) require performance from the Company, the Renewables Company, Parent and Acknowledging Affiliates pursuant to the Term Loan Documents or (B) terminate the commitments and/or other arrangements under the Term Loan Documents in accordance therewith, in each case of this clause (iv) unless such performance or termination and/or other arrangements is expressly prohibited by this Agreement or any of the Term Loan Documents.
Appears in 1 contract
Lien Priorities. Notwithstanding (a) the The date, manner manner, or order of filing, recordation, or perfection of the security interests or liens granted to or in favor of Moriah Foothill or Creditor notwithstanding, and the Notes Collateral Agent, (b) any contrary provisions of the UCC, or any applicable law or decisiondecision notwithstanding, (c) and the provisions of the Moriah Loan Agreements, Noteholder Foothill Agreements or any contract between any of the Creditors on one handCreditor Agreements notwithstanding, and the Borrower irrespective of whether Foothill or Creditor at any affiliate thereof, on the other hand, or (d) whether either Moriah or the Notes Collateral Agent time holds possession of all or any part of the Collateral, the following, as between Moriah Foothill and the Notes Collateral AgentCreditor, shall be the relative priority of the security interests and liens of Moriah Foothill and the Notes Collateral Agent (if any) of Creditor in and to the Collateral:
(a) Moriah Creditor shall have a first and prior priority security interest in the Creditor Priority Collateral to the extent set forth herein in all Accounts and Inventory as defined in the Section 9-102 of the UCC. The Notes Collateral Agent Creditor Claims, and Foothill shall have a second and subordinate priority security interest in the foregoing property and interests in such property; provided, that, any amount Creditor Priority Collateral to the extent of the Moriah Claim in excess of the Maximum Moriah Debt at any time outstanding (together with the interest on such excess) shall not be entitled to the benefit of the priority of the security interest of Moriah provided for in this Section 2.1(a)Foothill Claims.
(b) The Notes Collateral Agent Foothill shall have a first and prior priority security interest in all Collateral other than the remainder Creditor Priority Collateral, and Creditor shall not have any security interest whatsoever in any Collateral other than the Creditor Priority Collateral to the extent of the Creditor Claims. Creditor hereby acknowledges that, pursuant to the Foothill Agreements, no security interest in favor of Creditor shall be permitted to exist on any Collateral other than the Creditor Priority Collateral. In the event that Creditor obtains the rights of a holder in due course of a negotiable instrument that is Collateral, then Section 9309 of the UCC shall not provide Creditor with priority in such negotiable instrument. The provisions of Section 9309 of the UCC notwithstanding, the relative priority of the security interests and liens of Claimants with respect to any portion of the Collateral that is in which any Claimant obtains the subject of the Noteholder Agreements and Moriah shall have a second and subordinate security interest in such Notes Collateral whether now owned or hereafter created by any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest the validity, perfection, priority or enforceability of any lien or security interest heretofore granted to the other Party or granted in connection herewith or contemplated hereby. Notwithstanding any failure rights of a Party to perfect its security interests holder in any Collateral or any other defect in any security interests or obligations owing to such Party, the priority and rights as between the parties hereto due course shall be as determined by the priorities set forth hereinin this section.
Appears in 1 contract
Samples: Forbearance Agreement (Global One Distribution & Merchandising Inc)
Lien Priorities. Notwithstanding (a) The grant of the Revolver Liens pursuant to the Revolver Documents and the grant of the FLLO Liens pursuant to the FLLO Documents create two separate and distinct Liens of equal priority on the Shared Collateral for the equal and ratable benefit of the holders of all previously existing and future Priority Obligations. Notwithstanding the foregoing or anything else to the contrary in this Agreement, each FLLO Agent hereby acknowledges and agrees (on behalf of the applicable FLLO Secured Parties) that the FLLO Secured Parties (and not the Revolver Secured Parties) bear the risk of any determination by a court of competent jurisdiction that (w) the FLLO Obligations do not constitute “Priority Lien Obligations” under (and as defined in) the Second Lien Intercreditor Agreement, (x) any of the FLLO Obligations are unenforceable under applicable law or are subordinated to any other obligations (including the Second Lien Obligations (as defined in the Second Lien Intercreditor Agreement)), (y) any of the FLLO Obligations do not have an enforceable security interest in any of the Shared Collateral securing such FLLO Obligations and/or (z) any intervening security interest exists securing any other obligations (including the Second Lien Obligations (as defined in the Second Lien Intercreditor Agreement)) on a basis ranking prior to the security interest of such FLLO Obligations or (any such condition referred to in the foregoing clauses (w), (x), (y) or (z) with respect to any FLLO Obligations, an “Impairment” of such FLLO Obligations). In the event of any Impairment with respect to any FLLO Obligations, the results of such Impairment shall be borne solely by the holders of such FLLO Obligations, and the rights of the holders of such FLLO Obligations (including the right to receive distributions in respect of such FLLO Obligations pursuant to Section 8.01 or the right to equal and ratable liens on the Shared Collateral to the extent the Impairment relates to the FLLO Liens) set forth herein shall be modified to the extent necessary so that the effects of such Impairment are borne solely by the holders of the FLLO Obligations subject to such Impairment. The Revolver Agent, on behalf of the Revolver Secured Parties, agrees the Revolver Secured Parties shall not commence or support any judicial proceeding seeking an Impairment.
(b) Subject in all respects to Section 8.01, notwithstanding the date, time, method, manner or order of filinggrant, recordation, attachment or perfection of any Liens securing any Priority Obligations granted on the security interests or liens granted in favor of Moriah Shared Collateral and the Notes Collateral Agent, (b) notwithstanding any provisions provision of the UCCUniform Commercial Code of any jurisdiction, or any other applicable law or decisionthe Priority Debt Documents or any defect or deficiencies in the Liens securing the Priority Obligations or any other circumstance whatsoever, each Priority Secured Party hereby agrees that the Liens securing each Priority Obligation on any Shared Collateral shall be of equal priority.
(c) It is acknowledged that (i) the aggregate amount of the Revolver Obligations may be increased from time to time pursuant to the terms of the Revolver Documents, (ii) a portion of the Revolver Obligations consists or may consist of indebtedness that is revolving in nature, and the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed or refinanced, and (iii) (A) the Revolver Documents may be replaced, restated, supplemented, restructured refinanced or otherwise amended or modified from time to time and (B) the Revolver Obligations may be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, refinanced or otherwise amended or modified from time to time, in the case of the foregoing (A) and (B) all without affecting the payment priorities of the FLLO Liens hereunder or the provisions of this Agreement defining the Moriah Loan Agreements, Noteholder Agreements or any contract between any relative rights of the Creditors on one hand, Revolver Secured Parties and the Borrower FLLO Secured Parties. The lien priorities provided for herein shall not be altered or otherwise affected by any affiliate thereofamendment, on modification, supplement, extension, increase, renewal, restatement or Replacement of either the other hand, or Revolver Obligations (d) whether either Moriah or the Notes Collateral Agent holds possession of all or any part thereof) or the FLLO Obligations (or any part thereof), by the release of the Collateral, the following, as between Moriah and the Notes any Shared Collateral Agent, shall be the relative priority or of the security interests and liens of Moriah and the Notes Collateral Agent in the Collateral:
(a) Moriah shall have a first and prior security interest to the extent set forth herein in all Accounts and Inventory as defined in the Section 9-102 of the UCC. The Notes Collateral Agent shall have a second and subordinate security interest in the foregoing property and interests in such property; provided, that, any amount of the Moriah Claim in excess of the Maximum Moriah Debt at guarantees for any time outstanding (together with the interest on such excess) shall not be entitled to the benefit of the priority of the security interest of Moriah provided for in this Section 2.1(a).
(b) The Notes Collateral Agent shall have a first and prior security interest in the remainder of the Collateral that is the subject of the Noteholder Agreements and Moriah shall have a second and subordinate security interest in such Notes Collateral whether now owned Revolver Obligations or hereafter created by any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest the validity, perfection, priority action that any Priority Debt Representative or enforceability Priority Secured Party may take or fail to take in respect of any lien or security interest heretofore granted to the other Party or granted in connection herewith or contemplated hereby. Notwithstanding any failure of a Party to perfect its security interests in any Collateral or any other defect in any security interests or obligations owing to such Party, the priority and rights as between the parties hereto shall be as set forth hereinShared Collateral.
Appears in 1 contract
Samples: Collateral Trust Agreement (Chesapeake Energy Corp)
Lien Priorities. Notwithstanding (a) Notwithstanding the date, manner or order of filinggrant, recordation, attachment or perfection of the security interests any Perseus Second Lien or liens granted in favor of Moriah any Clutterbuck Lien, and the Notes Collateral Agent, (b) notwithstanding any provisions provision of the UCC, UCC or any other applicable law or decision, (c) the provisions of the Moriah any Clutterbuck Loan Agreements, Noteholder Agreements Document or Perseus Loan Document or any contract between any other circumstance whatsoever, Perseus hereby agrees that, so long as the Final Payment of the Creditors on one handClutterbuck Obligations has not occurred, and the Borrower (i) any Clutterbuck Lien now or any affiliate thereof, on the other hand, hereafter held by or (d) whether either Moriah or the Notes Collateral Agent holds possession of all or any part of the Collateral, the following, as between Moriah and the Notes Collateral Agent, shall be the relative priority of the security interests and liens of Moriah and the Notes Collateral Agent in the Collateral:
(a) Moriah shall have a first and prior security interest to the extent set forth herein in all Accounts and Inventory as defined in the Section 9-102 of the UCC. The Notes Collateral Agent shall have a second and subordinate security interest in the foregoing property and interests in such property; provided, that, any amount of the Moriah Claim in excess of the Maximum Moriah Debt at any time outstanding (together with the interest on such excess) shall not be entitled to for the benefit of Clutterbuck shall be senior in right, priority, operation, effect and all other respects to any and all Perseus Second Liens and (ii) any Perseus Second Lien now or hereafter held by or for the priority benefit of Perseus shall be junior and subordinate in right, priority, operation, effect and all other respects to any and all Clutterbuck Liens. The Clutterbuck Liens shall be and remain senior in right, priority, operation, effect and all other respects to any Perseus Second Liens for all purposes, whether or not any Clutterbuck Liens are subordinated in any respect to any other Lien securing any other obligation of the security interest of Moriah provided for in this Section 2.1(a)Borrower.
(b) The Notes For the avoidance of doubt, any of the Borrower’s laser units or related equipment that are now or hereafter subject to a Perseus Lien but that are used as substitute or replacement (i) Collateral Agent shall have a first and prior security interest (as defined in the remainder of CIT Loan Agreement), pursuant to the Collateral that is CIT Loan Agreement, or (ii) Clutterbuck Collateral, pursuant to the subject of the Noteholder Agreements Clutterbuck Loan Agreement, shall, upon such substitution or replacement and Moriah shall have a second and subordinate security interest in such Notes Collateral whether now owned or hereafter created by without any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest the validity, perfection, priority or enforceability further action of any lien or security interest heretofore granted party, (x) in the case of (i), be released from any Perseus Lien, and (y) in the case of (ii) become subject to the other Party or granted in connection herewith or contemplated hereby. Notwithstanding any failure subordination terms of a Party to perfect its security interests in any Collateral or any other defect in any security interests or obligations owing to such Party, the priority and rights as between the parties hereto shall be as set forth hereinthis Agreement.
Appears in 1 contract
Lien Priorities. Notwithstanding (a) the date, manner or order of filing, recordation, attachment or perfection of the security interests or and liens granted in favor to Agent or Bank of Moriah Xxxxxxxx by Borrower and the Notes Collateral Agent, (b) notwithstanding any provisions of the UCCUniform Commercial Code, the United States Bankruptcy Code (the “Bankruptcy Code”) or any applicable law or decision, (c) decision or the provisions WF Agreements or the Bank of the Moriah Loan Xxxxxxxx Agreements, Noteholder Agreements or any contract between any whether Agent or Bank of the Creditors on one hand, and the Borrower or any affiliate thereof, on the other hand, or (d) whether either Moriah or the Notes Collateral Agent Atchison holds possession of all or any part of the Collateral, the following, as between Moriah Agent and the Notes Collateral AgentBank of Xxxxxxxx, shall be the relative priority of the security interests and liens of Moriah Agent and the Notes Collateral Agent Bank of Xxxxxxxx in the Collateral:
(a) Moriah shall have a first and prior security interest to the extent set forth herein in all Accounts and Inventory as defined in the Section 9-102 of the UCC. The Notes Collateral Agent shall have a second and subordinate security interest in the foregoing property and interests in such property; provided, that, any amount of the Moriah Claim in excess of the Maximum Moriah Debt at any time outstanding (together with the interest on such excess) shall not be entitled to the benefit of the priority of the security interest of Moriah provided for in this Section 2.1(a).
(b) The Notes Collateral Agent shall have a first and prior security interest and lien in all property and collateral described on Schedule 2.1(a) hereto (the remainder “WF Senior Collateral”); and
(b) Bank of Atchison shall have a first and prior security interest in all property and collateral described on Schedule 2.1(b) hereto (the Collateral that is the subject “Bank of the Noteholder Agreements and Moriah Xxxxxxxx Senior Collateral”).
(c) Agent shall have a second and subordinate junior security interest in all property and collateral described on Schedule 2.1(c) hereto (“WF Junior Collateral”).
(d) The priorities established hereunder are only as between Agent and Bank of Xxxxxxxx and to the extent that the operation of the foregoing provisions would otherwise entitle any other person (including a trustee in bankruptcy) to either a priority over the parties herein or a right to avoid the lien of the other Party, then (and only to such Notes extent) this paragraph shall be null and void and Agent and Bank of Atchison shall, from the proceeds received from the other Party’s senior Collateral, sell and/or purchase participation interests in the WF Claim or the Bank of Atchison Claim to effectuate, to the maximum extent possible, the allocative purposes of this Section 2.1 and to maximize the recovery for Agent with respect to WF Senior Collateral whether now owned and Bank of Xxxxxxxx with respect to the Bank of Xxxxxxxx Senior Collateral in accordance with and pursuant to the other terms and provisions of this Agreement.
(e) Each Party agrees it will execute any and all agreements and documents which the other Party may reasonably request to evidence the subordination and priority of liens and security interests as established by this Section 2.1 in this Agreement.
(f) Subject only to the relative priorities set forth in this Section 2.1 (including without limitation, the provisions of subsection 2.1(d)), each of the Parties agrees that it will not contest or hereafter created by any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest challenge the validity, perfectionlegality, priority enforceability, perfection or enforceability avoidability of any lien or the respective security interest heretofore granted in, rights or lien of the other Party as set forth in Sections 2.1(a), (b), and (c) above on the Collateral (or any other collateral) of the other Party in any proceeding for any reason. Each Party acknowledges that a breach of this covenant is likely to cause irreparable harm to the other Party and shall be specifically enforceable.
(g) The lien and security interest priorities (collectively, the “lien priorities”) provided in this Agreement shall not be altered or granted otherwise affected by any amendment, modification, supplement, extension, renewal, restatement or refinancing of either the WF Agreements or the Bank of Xxxxxxxx Agreements, nor by any action or inaction which the Agent, any Lender, Bank of Atchison or the Borrower may take or fail to take in connection herewith respect of the Collateral, nor by the institution or contemplated hereby. Notwithstanding pendency of any failure Insolvency Proceeding.
(h) The undertakings and agreements set forth in this Agreement are solely for the benefit of a Party the Parties and there are no other parties (including, without limitation, the Borrower and affiliates of Borrower) who are intended to perfect its security interests be benefited in any way by this Agreement. Except as otherwise expressly set forth in this Agreement, nothing contained in this Agreement is intended to limit in any way the rights and remedies of the Agent or any Lender or Bank of Xxxxxxxx under the WF Agreements or Bank of Xxxxxxxx Agreements, respectively.
(i) Until the payment or satisfaction in full of the WF Claim and Bank of Atchison Claim, respectively, each Party further agrees that it shall not make any election, give any consent, commence any action or file any motion or take any other action in any case by or against the Borrower under the Bankruptcy Code which would result in the payment or distribution of the Collateral or other assets of the Borrower contrary to the express provisions of this Agreement, without the prior written consent of the other Party, which consent may be withheld in each others Party’s sole and absolute discretion, provided, however, that the notifying Party shall have the right, at any other defect time and in its sole discretion, to file a proof of claim and defend or refute any objection to such claim in any security interests Insolvency Proceeding.
(j) Notwithstanding anything to the contrary contained herein, Bank of Xxxxxxxx represents and warrants that if does not have any UCC filings against Borrower which cover, in whole or obligations owing to such Partyin part, the priority and rights as between WF Senior Collateral, other than those filings listed on Schedule 2.1(j) hereof (the parties hereto shall be as set forth herein“Bank of Atchison Filings”).
Appears in 1 contract
Lien Priorities. Notwithstanding (a) the date, manner or order of filing, recordation, or perfection of the security interests or liens granted in favor of Moriah and the Notes Collateral Agent, (b) any provisions of the UCC, or any applicable law or decision, (c) the provisions of the Moriah Loan Agreements, Noteholder Agreements or any contract between any of the Creditors on one hand, and the Borrower or any affiliate thereof, on the other hand, or (d) whether either Moriah or the Notes Collateral Agent holds possession of all or any part of the Collateral, the following, as between Moriah and the Notes Collateral Agent, shall be the relative priority of the security interests and liens of Moriah and the Notes Collateral Agent in the Collateral:1.1 Seniority Of Liens Securing First Lien Obligations
(a) Moriah shall have a first A Lien on Collateral securing any First Lien Obligation will at all times be senior and prior security interest to the extent set forth herein in all Accounts respects to a Lien on such Collateral securing any Second Lien Obligation, and Inventory as defined in the Section 9-102 of the UCC. The Notes a Lien on Collateral Agent shall have a second securing any Second Lien Obligation will at all times be junior and subordinate security interest in the foregoing property and interests in such property; provided, that, any amount of the Moriah Claim in excess of the Maximum Moriah Debt at any time outstanding (together with the interest all respects to a Lien on such excess) shall not be entitled to the benefit of the priority of the security interest of Moriah provided for in this Section 2.1(a)Collateral securing any First Lien Obligation.
(b) The Notes Except as otherwise expressly provided herein, the priority of the Liens securing First Lien Obligations and the rights and obligations of the Parties will remain in full force and effect irrespective of
(1) how a Lien was acquired (whether by grant, possession, statute, operation of law, subrogation, or otherwise),
(2) the time, manner, or order of the grant, attachment, or perfection of a Lien,
(3) any conflicting provision of the U.C.C. or other applicable law,
(4) any defect in, or non-perfection, setting aside, or avoidance of, a Lien or a First Lien Note Document or a Second Lien Note Document,
(5) the modification of a First Lien Obligation or a Second Lien Obligation,
(6) the modification of a First Lien Note Document or a Second Lien Note Document,
(7) the subordination of a Lien on Collateral Agent shall have securing a first First Lien Obligation to a Lien securing another obligation of a Grantor or other Person that is permitted under the First Lien Note Documents as in effect on the date hereof or secures a DIP Financing deemed consented to by the Second Lien Claimholders pursuant to section 5.1, “Use of Collateral and prior DIP Financing,”
(8) the exchange of a security interest in the remainder of the any Collateral that is the subject of the Noteholder Agreements and Moriah shall have for a second and subordinate security interest in such Notes Collateral whether now owned other Collateral,
(9) the commencement of an Insolvency Proceeding, or
(10) any other circumstance whatsoever, including a circumstance that might be a defense available to, or hereafter created by any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest the validitya discharge of, perfection, priority or enforceability of any lien or security interest heretofore granted to the other Party or granted a Grantor in connection herewith or contemplated hereby. Notwithstanding any failure respect of a Party to perfect its security interests in any Collateral First Lien Obligation or any other defect in any security interests a Second Lien Obligation or obligations owing to holder of such Party, the priority and rights as between the parties hereto shall be as set forth hereinObligation.
Appears in 1 contract
Lien Priorities. Notwithstanding (ai) The parties hereto hereby agree that, notwithstanding the datetime, manner order or order method of filingcreation, recordation, attachment or perfection of the respective security interests or liens and/or Liens granted in favor of Moriah the Collateral Agents to secure the Obligations or the filing or recording of financing statements or other Security Documents; the validity or enforceability of the security interests and Liens granted in favor of the Collateral Agents or the Revolver Secured Creditors or the Notes Secured Creditors; the dating, execution or delivery of any agreement, document or instrument granting any Collateral Agent or Secured Creditor security interests and/or Liens in or on any or all of the property or assets of any pledgor; the date on which any indebtedness is extended; the giving or failure to give notice of the acquisition or expected acquisition of any purchase money or other security interest; any provision of the Uniform Commercial Code, including any rule for determining priority thereunder or under any other law or rule governing the relative priorities of secured creditors, including with respect to real property or fixtures; any provision set forth in any Credit Document; or the possession or control by any Collateral Agent or Secured Creditor or any bailee of all or any part of any Collateral as of the date hereof or otherwise, (w) the Liens granted on the Revolver First Priority Collateral under the Revolver Security Documents to secure the Revolver Secured Obligations shall be a first and prior security interest for all purposes in such Revolver First Priority Collateral, (x) the Liens granted on the Notes First Priority Collateral under the Notes Security Documents to secure the Notes Secured Obligations shall be a first and prior security interest for all purposes in such Notes First Priority Collateral, (y) the Liens granted on the Revolver First Priority Collateral under the Notes Security Documents to secure the Notes Secured Obligations shall be second and subordinated to the Liens granted under the Revolver Security Documents on the Revolver First Priority Collateral and (z) and the Liens granted on the Notes First Priority Collateral under the Revolver Security Documents to secure the Revolver Secured Obligations shall be second and subordinated to the Liens granted under the Notes Security Documents on the Notes First Priority Collateral.
(ii) Notwithstanding the terms of any Credit Documents, in the event of any enforcement of any Liens or in connection with a Bankruptcy Proceeding, all proceeds of Collateral, including the proceeds of any collection, sale or disposition of the Collateral or any portion thereof in connection with the exercise of remedies under the Security Documents or otherwise and any proceeds or recoveries under any title insurance policy(ies) insuring any Mortgage, shall be distributed in accordance with the following procedure:
(x) Such proceeds of the Revolver First Priority Collateral shall be applied first to the Revolver Secured Obligations (including, without limitation, all interest thereon accruing subsequent to the filing of a bankruptcy case (or that would accrue but for such filing) at the rate provided for in the Revolving Credit Agreement, whether or not such interest is an allowed claim under applicable law) in accordance with Section 10 of the Revolver Security Agreement and, after the Revolver Secured Obligations have been Fully Paid, shall be applied to the Notes Secured Obligations in accordance with Section 10 of the Notes Security Agreement;
(y) Such proceeds of the Notes First Priority Collateral shall be applied first to the Notes Secured Obligations (including, without limitation, all interest thereon accruing subsequent to the filing of a bankruptcy case (or that would accrue but for such filing) at the rate provided for in the Indenture, whether or not such interest is an allowed claim under applicable law) in accordance with Section 10 of the Notes Security Agreement; and, after the Notes Secured Obligations have been Fully Paid, shall be applied to the Revolver Secured Obligations in accordance with Section 10 of the Revolver Security Agreement; and
(z) In the event that any Collateral Agent receives the proceeds of any Collateral in contravention of the preceding paragraphs (x) and (y), it shall hold such proceeds in trust for, and promptly turn over such proceeds (in the same form as received, with any necessary non-recourse endorsement) to the proper Collateral Agent in accordance with the provisions of clause (x) and (y) above; provided, however, that in the event any Collateral Agent fails to provide any such endorsement, the applicable Collateral Agent, or any of its officers or employees, is hereby irrevocably authorized to make the same (bwhich authorization, being coupled with an interest, is irrevocable).
(iii) For the avoidance of doubt, it is understood and agreed that the Revolver Collateral Agent may apply proceeds held in the Concentration Account (as defined in the Revolving Credit Agreement) and any provisions Deposit Account (as defined in the Revolving Credit Agreement) pursuant to and in accordance with the express terms of the UCCRevolving Credit Agreement, and that the mandatory prepayments provided for in Sections 2.4 and 2.5(c) of the Revolving Credit Agreement may be applied in a manner consistent with the terms of such agreement.
(iv) Each of the parties hereto acknowledges that the Lien priorities provided in this Agreement shall not be affected or impaired in any applicable law or decisionmanner whatsoever, including, without limitation, on account of (ci) the provisions of the Moriah Loan Agreementsinvalidity, Noteholder Agreements irregularity or any contract between any of the Creditors on one hand, and the Borrower or any affiliate thereof, on the other hand, or (d) whether either Moriah or the Notes Collateral Agent holds possession unenforceability of all or any part of the CollateralCredit Documents; (ii) any amendment, the followingchange or modification of any Credit Document, as between Moriah and the Notes Collateral Agentor (iii) any impairment, shall be the relative priority modification, change, exchange, release or subordination of the security interests and liens of Moriah and the Notes Collateral Agent in the Collateral:
(a) Moriah shall have a first and prior security interest to the extent set forth herein in all Accounts and Inventory as defined in the Section 9-102 of the UCC. The Notes Collateral Agent shall have a second and subordinate security interest in the foregoing property and interests in such property; provided, thator limitation on, any amount liability of, or stay of the Moriah Claim actions or lien enforcement proceedings against, any Credit Party, its property, or its estate in excess of the Maximum Moriah Debt at bankruptcy resulting from any time outstanding (together with the interest on such excess) shall not be entitled to the benefit of the priority of the security interest of Moriah provided for in this Section 2.1(a)bankruptcy, arrangement, readjustment, composition, liquidation, rehabilitation, similar proceeding or otherwise involving or affecting any Credit Party.
(bv) The Notes Collateral Agent parties hereto shall have a first and prior security interest not challenge or question (or support any other person in the remainder of the Collateral that is the subject of the Noteholder Agreements and Moriah shall have a second and subordinate security interest challenging or questioning) in such Notes Collateral whether now owned or hereafter created by any Loan Party. Neither Moriah nor the Notes Collateral Agent shall contest proceeding (including, without limitation, any Bankruptcy Proceeding) the validity, extent, perfection, priority or enforceability of this Agreement, as a whole, or any lien term or provision contained herein or the validity or enforceability of any Lien, Mortgage or financing statement in favor of any Collateral Agent or the relative priority of any such Lien or Mortgage.
(b) Each Collateral Agent hereby appoints each other as agent for purposes of perfecting its respective security interest heretofore granted interests, Liens and claims in the Collateral (in each case, whether such Collateral was delivered to the Revolver Collateral Agent, the Notes Collateral Agent or the Mortgagee, as the case may be, prior to, on or after the date hereof), in each case to the extent that such perfection may be obtained by possession or control and hereby acknowledges that it holds possession of such Collateral, including, without limitation, any instruments, for the benefit of the other Party Collateral Agents. On the date on which the Revolver Secured Obligations are Fully Paid, the Revolver Collateral Agent shall deliver or granted cause to be delivered any Collateral in connection herewith its possession or contemplated herebycontrol to the Notes Collateral Agent. Notwithstanding On the date on which the Notes Secured Obligations are Fully Paid, the Notes Collateral Agent shall deliver or cause to be delivered any failure Collateral in its possession or control to the Revolver Collateral Agent.
(c) The Notes Collateral Agent, for itself and each Notes Secured Creditor, hereby waives any requirement on the part of a Party the Revolver Collateral Agent or the Revolver Secured Creditors in respect of marshalling of assets constituting Revolver First Priority Collateral upon any exercise of remedies by the Revolver Collateral Agent or the Revolver Secured Creditors and, except as expressly set forth herein, any requirement that the Revolver Collateral Agent or any Revolver Secured Creditor exercise remedies with respect to perfect its collateral security interests for the Revolver Secured Obligations in any particular order or any particular manner. The Revolver Collateral Agent, on behalf of itself and each Revolver Secured Creditor, hereby waives any requirement on the part of the Notes Collateral Agent or the Notes Secured Creditors in respect of marshalling of assets constituting Notes First Priority Collateral upon any exercise of remedies by the Notes Collateral Agent or the Notes Secured Creditors and, except as expressly set forth herein, any requirement that the Notes Collateral Agent or any Notes Secured Creditor exercise remedies with respect to collateral security for the Notes Secured Obligations in any particular order or any particular manner.
(d) Prior to the commencement of any Bankruptcy Proceeding by or against one or more of the Company or any other defect in any security interests or obligations owing to such Credit Party, the priority and rights as between the parties hereto agree that neither the Company nor any other Credit Party shall:
(i) grant or permit any additional Liens on any asset or property to secure any Notes Obligation unless it has granted or concurrently grants a Lien on such asset or property to secure the Revolver Obligations; or
(ii) grant or permit any additional Liens on any asset or property to secure any Revolver Obligation unless it has granted or concurrently grants a Lien on such asset or property to secure the Notes Obligations other than any Capital Stock (as defined in the Notes Security Agreement) granted to secure any Revolver Obligation that is excluded from the Collateral pursuant to the Note Security Agreement to ensure compliance with Rule 3-16 of Regulation S-X of the Securities Act of 1933, as amended. To the extent any additional Liens are granted or any asset or property pursuant to this Section 2(d), the priority of such additional Liens shall be determined in accordance with Section 2(a). In addition, to the extent that the foregoing provisions are not complied with for any reason, without limiting any other rights and remedies available hereunder, the Revolver Collateral Agent, on behalf of the Revolver Secured Creditors and the Notes Collateral Agent, on behalf of the Notes Secured Creditors, agree that any amounts received by or distributed to any of them pursuant to or as set forth hereina result of Liens granted in contravention of this Section 2(d) shall be subject to Section 2(a)(ii).
(e) Nothing in this Agreement shall relieve any Assignor from the performance of any term, covenant, condition or agreement on such Assignor’s part to be performed or observed under or in respect of any of the Collateral pledged by it or from any liability to any Person under or in respect of any of such Collateral or impose any obligation on any Collateral Agent to perform or observe any such term, covenant, condition or agreement on such Assignor’s part to be so performed or observed or impose any liability on any Collateral Agent for any act or omission on the part of such Assignor relative thereto or for any breach of any representation or warranty on the part of such Assignor contained in this Agreement or any other Credit Document, or in respect of the Collateral pledged by it. The obligations of each Assignor contained in this paragraph shall survive the termination of this Agreement and the discharge of such Assignor’s other obligations hereunder.
Appears in 1 contract
Lien Priorities. Notwithstanding (a) the date, manner or order of filing, recordation, or perfection of the any security interests and liens now or liens hereafter granted in favor of Moriah and the Notes any Collateral Agentby Borrower and/or Corporate Guarantor to Purchasers or Fleet, (b) any provisions of the UCC, any applicable Uniform Commercial Code or any applicable statute, law or decision, (c) the provisions of the Moriah Loan Agreements, Noteholder Agreements decision or any contract between term of any of the Creditors on one hand, and Purchasers Documents or the Borrower or any affiliate thereof, on the other handFleet Documents, or (d) whether either Moriah Purchasers or the Notes Collateral Agent Fleet now or hereafter holds possession of all or any part of the Collateralany Collateral of Borrower and/or Corporate Guarantor, or any other matter whatsoever, the following, as between Moriah Purchasers and the Notes Collateral AgentFleet, shall be the relative priority of the their respective security interests and liens of Moriah and the Notes Collateral Agent in the Collateralliens:
(a) Moriah shall have a first and prior security interest to To the extent set forth herein necessary to pay in all Accounts and Inventory as defined in full the Section 9-102 of the UCC. The Notes Collateral Agent shall have a second and subordinate security interest in the foregoing property and interests in such property; providedFleet Claim, that, any amount of the Moriah Claim in excess of the Maximum Moriah Debt at any time outstanding (together with the interest on such excess) shall not be entitled to the benefit of the priority of the security interest of Moriah provided for in this Section 2.1(a).
(b) The Notes Collateral Agent Fleet shall have a first and prior security interest in and lien upon the remainder of the Collateral that is the subject of the Noteholder Agreements Collateral; and Moriah Purchasers shall have a second and subordinate security interest in such Notes Collateral whether now owned or hereafter created by any Loan Party. Neither Moriah nor therein;
(b) The priorities established hereunder are only as between Fleet and Purchasers and are expressly conditioned upon the Notes Collateral Agent shall contest the validity, proper perfection, and non-avoidibility by a bankruptcy trustee, of the security interests and liens which have been accorded priority or enforceability of pursuant hereto. If any lien or security interest heretofore granted to the other Party or granted in connection herewith or contemplated hereby. Notwithstanding any failure lien of a Party to perfect its security interests either Lender in any Collateral which, pursuant hereto, has been accorded priority hereafter ceases to be perfected, or any other defect in is avoid able by a bankruptcy trustee, such lien priority established pursuant hereto shall cease to be effective;
(c) The relative priorities of any security interests or obligations owing liens in any Collateral which are not established, altered or specified herein (or which, hereafter, by operation of the foregoing subparagraph or any other provision of this Agreement, cease to such Partybe effective), the priority shall exist and rights as between the parties hereto shall be as set forth hereincontinue in accordance with, and subject to, applicable law.
Appears in 1 contract
Samples: Intercreditor Subordination Agreement (Decora Industries Inc)
