Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) any provision of the UCC, any other applicable law, any of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that: (1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and (2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtedness.
Appears in 4 contracts
Samples: Support Agreement (Salton Inc), Support Agreement (Salton Inc), Intercreditor Agreement (Salton Inc)
Lien Subordination. (a) Notwithstanding (i) the date, time, method, manner or order respective dates of grant, attachment, attachment or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent the security interests of CRG and the security interests of [A/R Lender], or any First Lien Lender) or Second Lien Agent (contrary provision of the UCC, or any Second Lien applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [A/R Lender) in respect ] or CRG holds possession of all or any portion part of the Collateral, (i) all now existing and hereafter arising security interests of [A/R Lender] in any A/R Facility Senior Collateral shall at all times be senior to the security interests of CRG in such A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CRG in any CRG Senior Collateral shall at all times be senior to any interests, including any the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, the [A/R Lender] agrees and acknowledges that it shall not receive, and neither the Borrower nor any obligor shall grant, any security interest to the A/R Lender in the CRG Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or time dispute the validity, attachment, perfection, priority or enforceability of filing the other Creditor’s security interest in the Common Collateral, or recordation the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any document turnover of payment provisions hereof, or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) any provision of the UCC, any other applicable law, agreements among any of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtednessparties hereto.
Appears in 4 contracts
Samples: Term Loan Agreement (Silk Road Medical Inc), Term Loan Agreement (Silk Road Medical Inc), Term Loan Agreement (Silk Road Medical Inc)
Lien Subordination. (a) Notwithstanding (i) the date, time, method, manner or order respective dates of grant, attachment, attachment or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent the security interests of CR and the security interests of [ ], or any First Lien Lender) or Second Lien Agent (contrary provision of the UCC, or any Second Lien Lender) in respect applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [ ] or CR holds possession of all or any portion part of the Collateral, (i) all now existing and hereafter arising security interests of [ ] in any [ ] Senior Collateral shall at all times be senior to the security interests of CR in such [ ] Senior Collateral, and (ii) the order or time all now existing and hereafter arising security interests of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) CR in any CR Senior Collateral shall at all times be senior to the security interests of [ ] in such CR Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) Borrower granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) Borrower’s entry into the Credit Documents to which the other Creditor is a party;
(ii) acknowledges and agrees that the other Creditor’s Claims, the Borrower’s entry into the Credit Documents with the other Creditor, and the security interests in the Common Collateral granted by Borrower to the other Creditor shall be permitted under such Creditor’s Credit Documents, notwithstanding any provision of such Creditor’s Credit Documents to the contrary; and
(iii) any provision acknowledges, agrees and covenants, notwithstanding Section 2(c), that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the UCCother Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim.
(c) Subject to Section 2(b)(iii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other applicable law, agreements among any of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtednessparties hereto.
Appears in 3 contracts
Samples: Term Loan Agreement (Exagen Diagnostics Inc), Term Loan Agreement (Exagen Diagnostics Inc), Term Loan Agreement (Exagen Diagnostics Inc)
Lien Subordination. (a) Notwithstanding (i) the date, time, method, manner or order respective dates of grant, attachment, attachment or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent the security interests of CRG and the security interests of [A/R Lender], or any First Lien Lender) or Second Lien Agent (contrary provision of the UCC, or any Second Lien applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [A/R Lender) in respect ] or CRG holds possession of all or any portion part of the Collateral, (i) all now existing and hereafter arising security interests of [A/R Lender] in any A/R Facility Senior Collateral shall at all times be senior to the security interests of CRG in such A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CRG in any CRG Senior Collateral shall at all times be senior to the security interests of [A/R Lender] in such CRG Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or time dispute the validity, attachment, perfection, priority or enforceability of filing the other Creditor’s security interest in the Common Collateral, or recordation the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any document turnover of payment provisions hereof, or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) any provision of the UCC, any other applicable law, agreements among any of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtednessparties hereto.
Appears in 3 contracts
Samples: Term Loan Agreement (ViewRay, Inc.), Term Loan Agreement (ViewRay, Inc.), Term Loan Agreement (ViewRay, Inc.)
Lien Subordination. (a) Notwithstanding (i) the date, time, method, manner or order respective dates of grant, attachment, attachment or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent the security interests of CRG and the security interests of [A/R Lender], or any First Lien Lender) or Second Lien Agent (contrary provision of the UCC, PPSA or any Second Lien applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [A/R Lender) in respect ] or CRG holds possession of all or any portion part of the Collateral, (i) all now existing and hereafter arising security interests of [A/R Lender] in any A/R Facility Senior Collateral shall at all times be senior to the security interests of CRG in such A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CRG in any CRG Senior Collateral shall at all times be senior to the security interests of [A/R Lender] in such CRG Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or time dispute the validity, attachment, perfection, priority or enforceability of filing the other Creditor’s security interest in the Common Collateral, or recordation the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any document turnover of payment provisions hereof, or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) any provision of the UCC, any other applicable law, agreements among any of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtednessparties hereto.
Appears in 3 contracts
Samples: Term Loan Agreement (Decipher Biosciences, Inc.), Term Loan Agreement (Decipher Biosciences, Inc.), Term Loan Agreement (Decipher Biosciences, Inc.)
Lien Subordination. (a) Notwithstanding (i) the date, time, method, manner or order respective dates of grant, attachment, attachment or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent the security interests of CRG Creditors and the security interests of [A/R Lender], or any First Lien Lender) or Second Lien Agent (contrary provision of the UCC, or any Second Lien applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [A/R Lender) in respect ] or any CRG Creditor holds possession of all or any portion part of the Collateral, (i) all now existing and hereafter arising security interests of [A/R Lender] in any A/R Facility Senior Collateral shall at all times be senior to the security interests of CRG Creditors in such A/R Facility Senior Collateral, and (ii) the order or time all now existing and hereafter arising security interests of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) CRG Creditors in any CRG Senior Collateral shall at all times be senior to any interests, including the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, (iii) [A/R Lender] agrees and acknowledges that it shall not receive, and [neither Borrower nor any provision of the UCCObligor shall grant][Borrower shall not grant], any other applicable law, any security interest to [A/R Lender] in the CRG Senior Collateral.
(b) Each of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent [A/R Lender] and First Lien Co-CRG Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree thatCRG Creditors:
(1i) acknowledges and consents to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any Lien and all financing statements and other documents as reasonably deemed necessary by the other Creditor in respect order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of all the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any portion other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtednessparties hereto.
Appears in 2 contracts
Samples: Term Loan Agreement (T2 Biosystems, Inc.), Term Loan Agreement (Omeros Corp)
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the or grant, attachment or perfection of any Liens in favor of First Lien Agent (or First Lien Co-Agent granted to any Second Priority Representative or any First Lien Lender) Second Priority Debt Parties on the Shared Collateral or Second Lien Agent of any Liens granted to the Senior Representative or any other Senior Secured Party on the Shared Collateral (or any Second Lien Lender) actual or alleged defect in any Collateralof the foregoing) or any defect or deficiencies in, (iii) or failure to perfect or lapse in perfection of, or avoidance as a fraudulent conveyance or otherwise and notwithstanding any provision of the UCC, any other applicable law, any of the First Lien Loan Documents Second Priority Debt Document or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed any Senior Debt Document or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-AgentSecond Priority Representative, on behalf of itself and the First Lien Lenders, and each Second Lien Agent, on behalf of itself and the Priority Debt Party under any Second Lien LendersPriority Debt Facility, hereby agree that:
agrees that (1a) any Lien in respect of all or on the Shared Collateral securing any portion of the Collateral Senior Obligations now or hereafter held by or on behalf of Second Lien Agent the Senior Representative or any Second Lien Lender that secures all other Senior Secured Party or any portion other agent or trustee therefor, regardless of the Second Lien Indebtednesshow acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects be junior and subordinate prior to all Liens granted to First any Lien Agent, First Lien Co-Agent on the Shared Collateral securing any Second Priority Debt Obligations and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2b) any Lien in respect of all or on the Shared Collateral securing any portion of the Collateral Second Priority Debt Obligations now or hereafter held by or on behalf of First Lien Agentany Second Priority Representative, First Lien Co-Agent any Second Priority Debt Parties or any First Lien Lender that secures all Second Priority Representative or any portion other agent or trustee therefor, regardless of the First Lien Indebtedness how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Shared Collateral securing any Senior Obligations. All Liens on the Shared Collateral securing any Senior Obligations shall be and remain senior in all respects and prior to all Liens granted on the Shared Collateral securing any Second Priority Debt Obligations for all purposes, whether or not such Liens securing any Senior Obligations are subordinated to Second any Lien Agent securing any other obligation of the Company, any Grantor or any other Person or otherwise subordinated, voided, avoided, invalidated or lapsed. For the avoidance of doubt, the subordination provided for in this Agreement is lien subordination only and the Second Lien Lenders Priority Debt Obligations are not subordinated in right of payment to the Collateral to secure all or any portion of the Second Lien IndebtednessSenior Obligations.
Appears in 2 contracts
Samples: Combined Credit Agreements (Quicksilver Resources Inc), Second Lien Credit Agreement (Quicksilver Resources Inc)
Lien Subordination. Notwithstanding (ia) The Subordinated Debt shall be unsecured and the dateCompany shall not grant any Liens to secure any of the Subordinated Debt. To the extent any Lien is ever granted, timethe Senior Debt, methodthe Securities Purchase Agreement and the other Transaction Documents and any and all other documents and instruments evidencing or creating the Senior Debt and all guaranties, manner mortgages, security agreements, pledges and other collateral guarantying or order securing the Senior Debt or any part thereof shall be senior to the Subordinated Debt and the Subordinated Documents irrespective of grantthe time of the execution, attachment, delivery or issuance of any thereof or the filing or recording for perfection of any Liens granted thereof or the filing of any financing statement or continuation statement relating to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion thereof. Each Subordinated Creditor hereby agrees, upon request of the CollateralSenior Creditors at any time and from time to time, (ii) to execute such other documents or instruments as may be requested by the order Senior Creditors further to evidence of public record or time of filing or recordation of any document or instrument for perfecting otherwise the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) any provision senior priority of the UCC, any other applicable law, any Senior Debt as contemplated hereby. Each Subordinated Creditor further agrees to maintain on its books and records such notations as the Senior Creditors may reasonably request to reflect the subordination contemplated hereby and to perfect or preserve the rights of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:Senior Creditors hereunder.
(1b) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien IndebtednessEach Subordinated Creditor agrees that, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
within two (2) days following the Senior Creditors’s written request therefor, such Subordinated Creditor will execute, deliver and file any Lien and all such termination statements, mortgage discharges, lien releases and other agreements and instruments as the Senior Creditors reasonably deems necessary or appropriate in respect order to give effect to the preceding sentence. Each Subordinated Creditor hereby irrevocably appoints the Senior Creditors, and its successors and assigns, and their respective officers, with full power of all or substitution, the true and lawful attorney(s) of such Subordinated Creditor for the purpose of effecting any portion such executions, deliveries and filings if and to the extent that such Subordinated Creditor shall have failed to perform such obligations pursuant to the foregoing provisions of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtednessthis Section 8(b) within such period.
Appears in 2 contracts
Samples: Subordination Agreement (Charge Enterprises, Inc.), Subordination Agreement (GoIP GLOBAL, INC.)
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, attachment or perfection of any Liens granted to First Junior Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all any Collateral or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens Senior Lien in favor respect of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) Collateral and notwithstanding any provision of the UCC, any other applicable lawlaw (including the Bankruptcy Code), any Loan Document, any alleged or actual defect or deficiency in any of the First Lien Loan Documents or the Second Lien Loan Documentsforegoing, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, any failure to attach or (vif required under any Loan Document) perfect any Lien created under any Loan Document or any other circumstance whatsoever, each of First Lien Agent and First Lien Co-AgentJunior Representative, on behalf of itself and the First Lien Lendersrespective Junior Secured Parties, and Second Lien Agent, on behalf in respect of itself and the Second Lien Lenders, such Collateral hereby agree agrees that:
(1a) any Senior Lien in respect of all such Collateral, regardless of how or any portion when acquired, whether by grant, possession, statute, operation of the Collateral now law, subrogation or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtednessotherwise, shall be and shall remain senior and prior to any Junior Lien in all respects respect of such Collateral (whether or not such Senior Lien is subordinated to any Lien securing any other obligation); and
(b) any Junior Lien in respect of such Collateral, regardless of how or when acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Senior Lien in respect of all or any portion such Collateral. For the avoidance of doubt, as between the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien ABL Agent and the Second other Secured Parties, the Lien Lenders in on the Collateral securing the obligations to secure all or any portion the ABL Agent under the ABL Credit Agreement (other than Excess ABL Obligations) shall always be senior to the Lien on the Collateral securing the obligations to (i) the Term Secured Parties under the Term Credit Agreement, (ii) the Additional Indenture Secured Parties under the Additional Indenture and (iii) the Existing Indenture Secured Parties under the Existing Indenture. For the avoidance of doubt, (A) as between the Second Term Secured Parties and the other Secured Parties, the Lien Indebtednesson the Collateral securing the obligations to the Term Secured Parties under the Term Credit Agreement shall be (i) senior to the Lien on the Collateral securing the obligations to (x) the Additional Indenture Secured Parties under the Additional Indenture and (y) the Existing Indenture Secured Parties under the Existing Indenture and (ii) junior to the Lien on the Collateral securing the obligations to the ABL Agent; (B) as between the Additional Indenture Secured Parties and the other Secured Parties, the Lien on the Collateral securing the obligations to the Additional Indenture Secured Parties shall be (x) senior to the Lien on the Collateral securing the obligations to the Existing Indenture Secured Parties under the Existing Indenture and (y) junior to the Lien on the Collateral securing the obligations to (i) the ABL Agent and (ii) the Term Secured Parties under the Term Credit Agreement; and (C) as between the Existing Indenture Secured Parties and the other Secured Parties, the Lien on the Collateral securing the obligations to the Existing Indenture Secured Parties under the Existing Indenture shall be junior to the Lien on the Collateral securing the obligations to (i) the ABL Agent, (ii) the Term Secured Parties under the Term Credit Agreement and (iii) the Additional Indenture Secured Parties under the Additional Indenture.
Appears in 2 contracts
Samples: First Supplemental Indenture (SAExploration Holdings, Inc.), Intercreditor Agreement (SAExploration Holdings, Inc.)
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the or grant, attachment or perfection of any Liens in favor of First Lien Agent (or First Lien Co-Agent granted to any Second Priority Representative or any First Lien Lender) Second Priority Debt Parties on the Shared Collateral or Second Lien Agent of any Liens granted to any Senior Representative or any other Senior Secured Party on the Shared Collateral (or any Second Lien Lender) actual or alleged defect in any Collateral, (iiiof the foregoing) and notwithstanding any provision of the UCCUniform Commercial Code of any applicable jurisdiction, any other applicable law, any of the First Lien Loan Documents Second Priority Debt Document or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed any Senior Debt Document or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-AgentSecond Priority Representative, on behalf of itself and the First Lien Lenders, and each Second Lien Agent, on behalf of itself and the Priority Debt Party under its Second Lien LendersPriority Debt Facility, hereby agree that:
agrees that (1a) any Lien in respect of all or on the Shared Collateral securing any portion of the Collateral Senior Obligations now or hereafter held by or on behalf of Second Lien Agent any Senior Representative or any Second Lien Lender that secures all other Senior Secured Party or any portion other agent or trustee therefor, regardless of the Second Lien Indebtednesshow acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects be junior and subordinate prior to all Liens granted to First any Lien Agent, First Lien Co-Agent on the Shared Collateral securing any Second Priority Debt Obligations and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2b) any Lien in respect of all or on the Shared Collateral securing any portion of the Collateral Second Priority Debt Obligations now or hereafter held by or on behalf of First Lien Agentany Second Priority Representative, First Lien Co-Agent any Second Priority Debt Parties or any First Lien Lender that secures all Second Priority Representative or any portion other agent or trustee therefor, regardless of the First Lien Indebtedness how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Shared Collateral securing any Senior Obligations. All Liens on the Shared Collateral securing any Senior Obligations shall be and remain senior in all respects and prior to all Liens granted on the Shared Collateral securing any Second Priority Debt Obligations for all purposes, whether or not such Liens securing any Senior Obligations are subordinated to Second any Lien Agent and securing any other obligation of the Second Lien Lenders in the Collateral to secure all Borrower, any other Grantor or any portion of the Second Lien Indebtednessother Person or otherwise subordinated, voided, avoided, invalidated or lapsed.
Appears in 2 contracts
Samples: Credit Agreement (OUTFRONT Media Inc.), Credit Agreement (Outfront Media Minnesota LLC)
Lien Subordination. Notwithstanding Any and all Liens now existing or hereafter created or arising in favor of any Subordinated Party securing Subordinated Obligations, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, are expressly junior and subordinate in priority, operation and effect to any and all Liens now existing or hereafter created or arising in favor of any Senior Secured Party securing the Senior Secured Debt Obligations, notwithstanding (ia) anything to the datecontrary contained in any agreement or filing to which any Subordinated Party may now or hereafter be a party, and regardless of the time, method, manner order or order method of grant, attachment, recording or perfection of any Liens granted to First Lien Agent (financing statements or First Lien Co-Agent other security interests, assignments, pledges, deeds, Mortgages and other liens, charges or encumbrances or any First Lien Lender) defect or Second Lien Agent (deficiency, alleged defect or deficiency in, or failure to attach or perfect or lapse in perfection of, or avoidance as a fraudulent conveyance or otherwise of, any Second Lien Lender) in respect of all or any portion of the Collateralforegoing, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iiib) any provision of the UCC, UCC or any applicable law or any document or any other applicable law, circumstance whatsoever and (c) the fact that any such Liens in favor of any Senior Secured Party securing any of the First Senior Secured Debt Obligations are (i) subordinated to any Lien Loan securing any other obligation of any Senior Secured Party or (ii) otherwise subordinated, voided, avoided, invalidated or lapsed. In the event that any Subordinated Party becomes a judgment lien creditor as a result of its enforcement of its rights hereunder or under any Subordinated Note Documents (whether or not in violation of this Agreement), such judgment lien shall be subject to the Second Lien Loan Documents, terms of this Agreement for all purposes (iv) irrespective of whether including in relation to the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (vSenior Secured Debt Obligations) any to the same extent as all other circumstance whatsoever, each of First Lien Agent Liens securing the Subordinated Obligations. Liens on the Senior Secured Collateral shall be and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall remain senior in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted on the Subordinated Collateral for all purposes, whether or not such Liens securing any such Senior Secured Debt Obligations are subordinated to Second any Lien securing any other obligation of the Debtors or any other Person.Payments Held in Trust. All payments or distributions upon or with respect to the Subordinated Note or any other Subordinated Obligations which are received by the Subordinated Lender contrary to the provisions of this Agreement shall be received in trust for the benefit of the Senior Secured Parties and shall be paid over to Senior Collateral Agent and the Second Lien Lenders in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) to, or held as Senior Secured Collateral to secure all for, the payment or any portion performance of the Second Lien IndebtednessSenior Secured Debt Obligations in accordance with the terms of the Senior Secured Debt Documents.
Appears in 2 contracts
Samples: Intercreditor and Subordination Agreement (AG Mortgage Investment Trust, Inc.), Intercreditor and Subordination Agreement (AG Mortgage Investment Trust, Inc.)
Lien Subordination. Notwithstanding (ia) the date, time, method, manner or order of grant, attachment, or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) any provision of the UCC, any other applicable law, any of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1) any Any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien the Collateral Agent or any Second Lien Lender Holder that secures all or any portion of the Second Lien Indebtedness, Obligations under the Notes and Note Guarantees shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Priority Lien IndebtednessObligations (and pari passu with all Liens in respect of all or any portion of the Collateral now or hereafter held by the FRN Collateral Agent or any holder of Floating Rate Notes that secures all or any part of the obligations under the Floating Rate Notes or the Floating Rate Note Guarantees), and
(2b) any Any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of the holders from time to time of the First Priority Lien Agent, First Lien Co-Agent or any First Lien Lender Obligations that secures secure all or any portion of the First Priority Lien Indebtedness Obligations shall in all respects be senior and prior to all Liens granted to Second Lien the Collateral Agent and the Second Lien Lenders or any Holder in the Collateral to secure all or any portion of the Second Obligations under the Notes or Note Guarantees.
(c) The Collateral Agent, for and on behalf of itself and the Holders, agrees that neither it nor any Holder shall obtain a Lien Indebtednesson any Collateral to secure all or any portion of the Obligations under the Notes unless, concurrently therewith, a Lien on such Collateral is granted in favor of (i) the holders from time to time of the First Priority Lien Obligations and (ii) the holders of the Floating Rate Notes, the FRN Trustee and the FRN Collateral Agent and that all such Liens are and will be subject to the Intercreditor Agreements.
Appears in 2 contracts
Samples: Indenture (Angiotech America, Inc.), Indenture (Angiotech Pharmaceuticals Inc)
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the or grant, attachment or perfection of any Liens in favor of First Lien Agent (or First Lien Co-Agent granted to any Second Priority Representative or any First Lien Lender) Second Priority Debt Parties on the Collateral or Second Lien Agent of any Liens granted to the Senior Representative or any other Senior Secured Party on the Collateral (or any Second Lien Lender) actual or alleged defect in any Collateralof the foregoing) or any defect or deficiencies in, (iii) or failure to perfect or lapse in perfection of, or avoidance as a fraudulent conveyance or otherwise and notwithstanding any provision of the UCC, any other applicable law, any of the First Lien Loan Documents Second Priority Debt Document or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed any Senior Debt Document or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agentthe Second Priority Representative, on behalf of itself and the First Lien Lenders, and each Second Lien Agent, on behalf of itself and Priority Debt Party under the Second Lien LendersPriority Debt Facility, hereby agree that:
agrees that (1a) any Lien in respect of all or any portion of on the Collateral securing any Senior Obligations now or hereafter held by or on behalf of Second Lien Agent the Senior Representative or any Second Lien Lender that secures all other Senior Secured Party or any portion other agent or trustee therefor, regardless of the Second Lien Indebtednesshow acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects be junior and subordinate prior to all Liens granted to First any Lien Agent, First Lien Co-Agent and the First Lien Lenders in on the Collateral to secure all or securing any portion of the First Lien Indebtedness, and
Second Priority Debt Obligations and (2b) any Lien in respect of all or any portion of on the Collateral securing any Second Priority Debt Obligations now or hereafter held by or on behalf of First Lien Agentthe Second Priority Representative, First Lien Co-Agent any Second Priority Debt Parties or any First Lien Lender that secures all other agent or any portion trustee therefor, regardless of the First Lien Indebtedness how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Collateral securing any Senior Obligations. All Liens on the Collateral securing any Senior Obligations shall be and remain senior in all respects and prior to all Liens granted on the Collateral securing any Second Priority Debt Obligations for all purposes, whether or not such Liens securing any Senior Obligations are subordinated to Second any Lien Agent securing any other obligation of the Company, any Grantor or any other Person or otherwise subordinated, voided, avoided, invalidated or lapsed. For the avoidance of doubt, the subordination provided for in this Agreement is lien subordination only and the Second Lien Lenders Priority Debt Obligations are not subordinated in right of payment to the Collateral to secure all or any portion of the Second Lien IndebtednessSenior Obligations.
Appears in 2 contracts
Samples: Intercreditor Agreement (Sundance Energy Australia LTD), Second Lien Credit Agreement (Magnum Hunter Resources Corp)
Lien Subordination. (a) Each holder of the Note hereby agrees that any Lien that it may now or hereafter have in the Collateral is subject and subordinate, to the extent and in the manner provided herein, to any Liens that the Agent or the holder(s) of the Bank Indebtedness may now or hereafter have in the Collateral to secure the Bank Indebtedness. Each holder of the Note agrees that that, except as otherwise provided in Section 4.4 hereof, they shall have no right to undertake any Enforcement Action with respect to any of the Collateral, unless and until all of the holder(s) of Bank Indebtedness shall have been paid in full and the commitments thereunder and the commitments, if any, of the holders of the Senior Indebtedness to extend credit accommodations to Quantum or the Company have expired (and in any event subject to the limitations set forth in Section 4.4 hereof with respect to any Enforcement Action taken in connection with any Insolvency Proceeding).
(b) Notwithstanding any Lien in the Collateral now or hereafter acquired by any holder of the Note, the holder(s) of the Bank Indebtedness may take possession of, sell, dispose of, and otherwise deal with all or any part of the Collateral, and may enforce any right or remedy available to it with respect to the Collateral, all without notice to or consent of the holder(s) of the Note except as specifically required by applicable law. Without limiting the generality of the foregoing, if (i) the date, time, method, manner Company or order of grant, attachment, any other Person that has granted a Lien in any Collateral intends to sell or perfection otherwise dispose of any Liens granted Collateral to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect an unrelated third party outside the ordinary course of all or any portion of the Collateralbusiness, (ii) the holder(s) of Bank Indebtedness has consented to such sale or disposition and has given written notice thereof to the holder(s) of the Note, (iii) the holder(s) of the Note have failed, within fifteen (15) days after receipt of such notice, to purchase for cash the Bank Indebtedness in accordance with Article XII hereof, and (iv) the holder(s) of the Bank Indebtedness has applied the net cash proceeds of such sale or disposition to the holder(s) of the Bank Indebtedness in accordance with clause (c) below, each holder of the Note shall be deemed to have consented to such sale or disposition, to have released any Lien it may have in such Collateral and to have authorized the Agent or its agents to file partial releases with respect to such Collateral.
(c) The holder(s) of the Senior Indebtedness shall have no duty to preserve, protect, care for, insure, take possession of, collect, dispose of, or otherwise realize upon any of the Collateral, and in no event shall the holder(s) of the Senior Indebtedness be deemed to be any holder of the Note’s agent with respect to the Collateral. All proceeds received by the holder(s) of the Senior Indebtedness with respect to any Collateral shall be applied by the holder(s) of the Senior Indebtedness to the Senior Indebtedness secured by such Collateral in such order of application as the holder(s) of the Senior Indebtedness may choose.
(d) Notwithstanding anything to the contrary in the Note or time the Purchase Agreement, unless and until all of filing the holder(s) of the Senior Indebtedness shall have been paid in full and the commitments, if any, of the holders of the Bank Indebtedness to extend credit accommodations to Quantum or recordation the Company have expired, no holder of the Note shall request or require that the Company or any other Person that has granted a Lien in any Collateral (i) obtain from any bailee holding any item of Collateral any acknowledgement or other document confirming that such bailee holds such collateral for the benefit of any document holder of the Note, (ii) obtain from any securities intermediary, letter of credit issuer, depository bank or instrument for perfecting other party holding or issuing any item of Collateral, any control agreements, (iii) deliver to any holder of the Liens in favor Note any instruments or documents comprising Collateral or endorsements or assignments of First same, (iv) obtain possession of or arrange to have the holder of the Note’s Lien Agent noted on any motor vehicle titles, (v) obtain waivers from any landlords or First Lien Co-Agent mortgagees of any property where any inventory or equipment constituting Collateral is located, (vi) record with the United States Patent and Trademark Office or the United States Copyright Office any collateral assignments of, or security agreements granting or reflecting a security interest in, any registered intellectual property owned by the Company or any First other Person that has granted a Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, or (iiivii) establish or deposit any provision of amounts into any deposit account, collateral account or lockbox owned by or relating to the UCC, Company or any other applicable law, any of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1) any Person that has granted a Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien IndebtednessCollateral.
Appears in 2 contracts
Samples: Convertible Senior Subordinated Note Purchase Agreement (Quantum Fuel Systems Technologies Worldwide Inc), Convertible Senior Subordinated Note Purchase Agreement (Quantum Fuel Systems Technologies Worldwide Inc)
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien the Senior Agent (or any Second Lien Senior Lender) or the Noteholder Collateral Agent (or any Noteholder) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien the Senior Agent (or any Second Lien Senior Lender) or the Noteholder Collateral Agent (or any Noteholder) in any Collateral, (iii) any provision of the UCC, PPSA or any other applicable law, any of the First Lien Senior Loan Documents or the Second Lien Loan Indenture Documents, (iv) irrespective of whether the Liens securing all or part of the First Lien Loan Documents Senior Indebtedness are valid, perfected, enforceable, void, avoidable, subordinated, disputed disputed, or allowed, (v) the fact that any such Liens in favor of the Senior Agent (or any Senior Lender) securing the Senior Indebtedness are (A) subordinated to any Lien securing any obligation of any Obligor other than the Notes Obligations or (vB) otherwise subordinated, voided, avoided, invalidated or lapsed, or (vi) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-the Senior Agent, on behalf of itself and the First Lien Senior Lenders, and Second Lien the Noteholder Collateral Agent, on behalf of itself and the Second Lien LendersNoteholders, hereby agree that:
(1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien the Noteholder Collateral Agent or any Second Lien Lender Noteholder that secures all or any portion of the Second Lien Indebtedness, Notes Obligations shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-the Senior Agent and the First Lien Senior Lenders in the Collateral to secure all or any portion of the First Lien Senior Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-the Senior Agent or any First Lien Senior Lender that secures all or any portion of the First Lien Senior Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien the Noteholder Collateral Agent and the Second Lien Lenders or any Noteholder in the Collateral to secure all or any portion of the Second Lien IndebtednessNotes Obligations.
Appears in 2 contracts
Samples: Indenture (Angiotech Pharmaceuticals Inc), Indenture (Angiotech Pharmaceuticals Inc)
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the or grant, attachment or perfection of any Liens in favor of First Lien Agent (or First Lien Co-Agent granted to any Second Priority Representative or any First Lien Lender) Second Priority Debt Parties on the Shared Collateral or Second Lien Agent of any Liens granted to any Senior Representative or any other Senior Secured Party on the Shared Collateral (or any Second Lien Lender) actual or alleged defect in any Collateral, (iiiof the foregoing) and notwithstanding any provision of the UCC, any other applicable law, any of the First Lien Loan Documents Second Priority Debt Document or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed any Senior Debt Document or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-AgentSecond Priority Representative, on behalf of itself and the First Lien Lenders, and each Second Lien Agent, on behalf of itself and the Priority Debt Party under its Second Lien LendersPriority Debt Facility, hereby agree that:
agrees that (1a) any Lien in respect of all on the Shared Collateral securing or purporting to secure any portion of the Collateral Senior Obligations now or hereafter held by or on behalf of Second Lien Agent any Senior Representative or any Second Lien Lender that secures all other Senior Secured Party or any portion other agent or trustee therefor, regardless of the Second Lien Indebtednesshow acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects be junior and subordinate prior to all Liens granted to First any Lien Agent, First Lien Co-Agent and on the First Lien Lenders in the Shared Collateral securing or purporting to secure all or any portion of the First Lien Indebtedness, and
Second Priority Debt Obligations and (2b) any Lien in respect of all on the Shared Collateral securing or purporting to secure any portion of the Collateral Second Priority Debt Obligations now or hereafter held by or on behalf of First Lien Agentany Second Priority Representative, First Lien Co-Agent any Second Priority Debt Parties or any First Lien Lender that secures all Second Priority Representative or any portion other agent or trustee therefor, regardless of the First Lien Indebtedness how acquired, whether by gxxxx, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Shared Collateral securing or purporting to secure any Senior Obligations. All Liens on the Shared Collateral securing or purporting to secure any Senior Obligations shall be and remain senior in all respects and prior to all Liens granted to Second Lien Agent and on the Second Lien Lenders in the Shared Collateral securing or purporting to secure any Second Priority Debt Obligations for all purposes, whether or not such Liens securing or purporting to secure any Senior Obligations are subordinated to any Lien securing any other obligation of any Obligor or any portion of the Second Lien Indebtednessother Person or otherwise subordinated, voided, avoided, invalidated or lapsed.
Appears in 2 contracts
Samples: First Lien/Second Lien Intercreditor Agreement (DISH Network CORP), Indenture Agreement (DISH Network CORP)
Lien Subordination. Notwithstanding (i) With respect to any Liens on the dateABL Priority Collateral securing the Secured Obligations, timesuch Liens cease to have senior “first priority” status pursuant to an ABL Intercreditor Agreement with respect to Liens on such ABL Priority Collateral securing Indebtedness outstanding under any Term Facility or any Junior Lien Indebtedness, methodin each case, manner with an aggregate principal amount outstanding in excess of the Threshold Amount, and (ii) with respect to the provisions in any ABL Intercreditor Agreement subordinating the Liens on the Collateral securing Indebtedness outstanding under any Term Facility or order any Junior Lien Indebtedness, in each case, with an aggregate principal amount outstanding in excess of grantthe Threshold Amount to the Liens on the Collateral securing the Secured Obligations, attachment(A) any Loan Party contests in writing the validity or enforceability thereof, (B) any court of competent jurisdiction in a final non-appealable order, determines such subordination provisions to be invalid or unenforceable, or perfection (C) such subordination provisions otherwise cease to be valid, binding and enforceable obligations of the parties to such ABL Intercreditor Agreement, then, and in every such event (other than an event with respect to Holdings or the Borrowers described in clause (f) or (g) of this Article) and at any Liens granted time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to First Lien Agent the Lead Borrower, take any of the following actions, at the same or different times: (or First Lien Co-Agent i) terminate the Commitments or any First Lien Lender) Additional Revolving Commitments and thereupon such Commitments or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the CollateralAdditional Revolving Commitments shall terminate immediately, (ii) declare the order Revolving Loans then outstanding to be due and payable in whole (or time in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of filing the Revolving Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or recordation other notice of any document or instrument for perfecting the Liens in favor kind, all of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, which are hereby waived by each Borrower and (iii) any provision require that the US Borrower deposit in the US LC Collateral Account and the Canadian Borrower deposits in the Canadian LC Collateral Account, an additional amount in Cash as reasonably requested by the Issuing Banks (not to exceed 101% of the UCCrelevant face amount) of the then outstanding US LC Exposure (minus the amount then on deposit in the US LC Collateral Account) or Canadian LC Exposure (minus the amount then on deposit in the Canadian LC Collateral Account), as applicable; provided that upon the occurrence of an event with respect to Holdings or any Borrower described in clauses (f) or (g) of this Article, any other such Commitments and/or Additional Revolving Commitments applicable law, any of to the First Lien Loan Documents or US Borrower and to the Second Lien Loan Documents, (iv) irrespective of whether extent such event is applicable to the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtedness.Canadian
Appears in 1 contract
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Senior Lien Agent (or any Second Senior Lien Lender) or Junior Lien Agent (or any Junior Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Senior Lien Agent (or any Second Senior Lien Lender) or Junior Lien Agent (or any Junior Lien Lender) in any Collateral, (iii) any provision of the UCC, any other applicable law, any of the First Senior Lien Loan Documents or the Second Junior Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Senior Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First the Senior Lien Agent and First Lien Co-Agent, on behalf of itself and the First Senior Lien Lenders, and Second Junior Lien Agent, on behalf of itself and the Second Junior Lien Lenders, hereby agree that:
(1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Junior Lien Agent or any Second Junior Lien Lender that secures all or any portion of the Second Junior Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Senior Lien Agent, First Lien Co-Agent and the First Senior Lien Lenders in the Collateral to secure all or any portion of the First Senior Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Senior Lien Agent, First Lien Co-Agent or any First Senior Lien Lender that secures all or any portion of the First Senior Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Junior Lien Agent and the Second Junior Lien Lenders in the Collateral to secure all or any portion of the Second Junior Lien Indebtedness.
Appears in 1 contract
Lien Subordination. Notwithstanding Any and all Liens now existing or hereafter created or arising in favor of any Subordinated Party securing Subordinated Obligations, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, are expressly junior and subordinate in priority, operation and effect to any and all Liens now existing or hereafter created or arising in favor of any Senior Secured Party securing the Senior Secured Debt Obligations, notwithstanding (ia) anything to the datecontrary contained in any agreement or filing to which any Subordinated Party may now or hereafter be a party, and regardless of the time, method, manner order or order method of grant, attachment, recording or perfection of any Liens granted to First Lien Agent (financing statements or First Lien Co-Agent other security interests, assignments, pledges, deeds, Mortgages and other liens, charges or encumbrances or any First Lien Lender) defect or Second Lien Agent (deficiency, alleged defect or deficiency in, or failure to attach or perfect or lapse in perfection of, or avoidance as a fraudulent conveyance or otherwise of, any Second Lien Lender) in respect of all or any portion of the Collateralforegoing, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iiib) any provision of the UCC, UCC or any applicable law or any document or any other applicable law, circumstance whatsoever and (c) the fact that any such Liens in favor of any Senior Secured Party securing any of the First Senior Secured Debt Obligations are (i) subordinated to any Lien Loan securing any other obligation of any Senior Secured Party or (ii) otherwise subordinated, voided, avoided, invalidated or lapsed. In the event that any Subordinated Party becomes a judgment lien creditor as a result of its enforcement of its rights hereunder or under any Subordinated Note Documents (whether or not in violation of this Agreement), such judgment lien shall be subject to the Second Lien Loan Documents, terms of this Agreement for all purposes (iv) irrespective of whether including in relation to the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (vSenior Secured Debt Obligations) any to the same extent as all other circumstance whatsoever, each of First Lien Agent Liens securing the Subordinated Obligations. Liens on the Senior Secured Collateral shall be and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall remain senior in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted on the Subordinated Collateral for all purposes, whether or not such Liens securing any such Senior Secured Debt Obligations are subordinated to Second any Lien Agent securing any other obligation of the Debtors or any other Person.Payments Held in Trust. All payments or distributions upon or with respect to the Subordinated Note or any other Subordinated Obligations which are received by the Subordinated Lender contrary to the provisions of this Agreement (including any payments or distributions received from Wilmington Trust, National Association, as collateral agent (in such capacity, the “Collateral Agent”), or any secured party under or pursuant to the Security and Collateral Agency Agreement, dated as of April 10, 2020, by and among AGMIT and its affiliates party thereto and the Second Lien Lenders Collateral Agent) shall, to the extent of any outstanding Senior Secured Debt Obligations, be received in trust for the benefit of the Senior Secured Parties and shall be paid over to the Senior Secured Parties in proportion to their holdings of then outstanding Senior Secured Debt Obligations in the Collateral same form as so received (with any necessary endorsement) to secure all be applied (in the case of cash) to the payment or any portion performance of the Second Lien IndebtednessSenior Secured Debt Obligations in accordance with the terms of the Senior Secured Debt Documents.
Appears in 1 contract
Samples: Intercreditor and Subordination Agreement (AG Mortgage Investment Trust, Inc.)
Lien Subordination. Notwithstanding (ia) Bank Security Interests in the dateCollateral securing Senior Debt shall be senior and prior in right to the Security Interests. The Trustee and each Holder acknowledge that the rights of the Bank Lenders in respect of Senior Debt to receive proceeds from the disposition of the Collateral is senior to the rights of the Holders to receive proceeds from the disposition of the Collateral. Bank Security Interests in the Collateral securing Senior Subordinated Debt are PARI PASSU with the Security Interests, time, method, manner or and the rights of Bank Lenders in respect of Senior Subordinated Debt to receive proceeds from the disposition of the Collateral is PARI PASSU with the rights of the Holders to receive proceeds from the disposition of the Collateral.
(b) The priorities set forth in this Section 4.6 are applicable irrespective of the order of grantcreation, attachment, attachment or perfection of any Liens granted or security interests or any priority that might otherwise be available to First Lien Agent the Holders, the Trustee, or any Bank Lender under the applicable law.
(c) The priorities set forth in this Section 4.6 are premised upon the assumption that the Bank Security Interests are duly and properly created and perfected and are not avoidable for any reason. Accordingly, to the extent that (but only for so long as) any Bank Security Interests are not duly and properly created and perfected or are avoidable for any reason, then the subordinations provided for in this Section 4.6 shall not be effective as to the particular Collateral subject to such Bank Security Interests; provided, however, that the Trustee and each Holder, by accepting a Security, agree not to contest, or to bring (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iiivoluntarily join in) any provision action or proceeding for the purpose of contesting the UCCvalidity, perfection or priority (as herein provided) of, or seeking to avoid, any other applicable law, any of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien LendersBank Security Interests, and Second Lien Agentprovided further, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1) that nothing herein shall be deemed or construed to prevent any Lien Bank Lender from commencing an action or proceeding to assert any right or claim it may have arising under or in respect of all or connection with any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien IndebtednessDocuments.
Appears in 1 contract
Samples: Indenture (Jazz Casino Co LLC)
Lien Subordination. (a) Notwithstanding (i) the date, time, method, manner or order of grant, attachment, attachment or perfection of any Liens granted to First Junior Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all any Collateral or of any portion Senior Lien in respect of the any Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) any provision of the UCC, any other applicable law, any of the First Lien Collateral Document or any Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowedDocument, or (viii) whether the ABL Secured Party or the Term Loan Secured Party, in each case, whether directly or through agents, holds possession of, or has control over, all or any other circumstance whatsoeverpart of the Collateral, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien LendersSecured Party, hereby agree agrees that:
(1A) (x) any Lien in respect of all or any portion of the Collateral ABL Secured Party on the ABL Priority Collateral, whether now or hereafter held by or on behalf of Second Lien Agent or purported to be held by or on behalf of the ABL Secured Party or any Second agent, or trustee or bailee therefor, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, and whether or not such Lien Lender that secures all is subordinated to any Lien securing any other obligation, shall be and shall remain senior and prior to any Lien of the Term Loan Secured Party on the ABL Priority Collateral and (y) any Lien on such ABL Priority Collateral now or hereafter held or purported to be held by or on behalf of the Term Loan Secured Party or any portion agent or trustee therefor securing any Term Loan Obligations, regardless of the Second Lien Indebtednesshow acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall in all respects be junior and subordinate in all respects to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to thereon that secure all or any portion of the First Lien Indebtedness, ABL Claims; and
(2B) (x) any Lien in respect of all or any portion of the Collateral Term Loan Secured Party on the Term Loan Priority Collateral, whether now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or purported to be held by or on behalf of the Term Loan Secured Party or any First agent, or trustee or bailee therefor, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, and whether or not such Lien Lender is subordinated to any Lien securing any other obligation, shall be and shall remain senior and prior to any Lien of the ABL Secured Party on the Term Loan Priority Collateral and (y) any Lien on such Term Loan Priority Collateral now or hereafter held or purported to be held by or on behalf of the ABL Secured Party or any agent or trustee therefor securing any ABL Obligations, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens thereon that secures secure any Term Loan Claims.
(b) It is acknowledged and agreed that (i) all or any a portion of the First Lien Indebtedness ABL Claims 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 and (ii) subject to the limitations set forth in this Agreement and the applicable Senior Documents, the ABL Claims, Excess ABL Claims, Term Loan Claims and Excess Term Loan Claims may be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced (subject to Section 5.3) or otherwise amended or modified from time to time, all without affecting the subordination of the Junior Liens hereunder or the provisions of this Agreement defining the relative rights of the Secured Parties.
(c) All Liens with respect to the Senior Collateral securing any Senior Claims shall be and remain senior in all respects be senior and prior to all Liens granted with respect to Second the Senior Collateral securing any Junior Claims for all purposes, whether or not such Liens securing any Senior Claims are subordinated to any Lien Agent securing any other obligation of any Grantor or any other Person (but only to the extent that such subordination is permitted pursuant to the terms of the Senior Documents, or as contemplated in Section 6.1).
(d) The ABL Secured Party and the Second Lien Lenders Term Loan Secured Party hereby agree that the terms of this Agreement, including the priorities and subordination set forth above in the Collateral to secure this Section 2.1, shall govern notwithstanding (i) that all or any portion part of the Second Lien IndebtednessABL Claims, Excess ABL Claims, Term Loan Claims and Excess Term Loan Claims are determined or deemed unenforceable or invalidated or that any Liens granted or purported to be granted securing payment and performance of all or part of the ABL Claims, Excess ABL Claims, Term Loan Claims or Excess Term Loan Claims are not perfected or are determined or deemed to be void, invalid or lapsed or subordinated, avoided, disallowed or otherwise ineffective, in each case in any judicial proceeding or otherwise or (ii) any other circumstance of any kind or nature whatsoever.
Appears in 1 contract
Samples: Intercreditor Agreement (Blyth Inc)
Lien Subordination. (a) Notwithstanding (i) anything to the date, time, method, manner or order of grant, attachment, or perfection of contrary in any Liens granted to First Lien Agent (or First Lien Co-Agent Holdings Loan Document or any First Lien Lender) or Second Lien Bridge Loan Document, the Bridge Agent (or any Second Lien Lender) and the Holdings Agent hereby agree that all security interests created in respect of all or any portion of the CollateralShared Collateral under the Holdings Loan Documents shall be subordinated to, (ii) and thereby enjoy second priority status solely as to, the order or time of filing or recordation of any document or instrument for perfecting the Liens security interest in favor of First Lien the Bridge Agent in the Shared Collateral (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) to the extent such security interest in any Collateral, (iii) any provision favor of the UCCBridge Agent shall be in effect and perfected, any other applicable law, any but regardless of the First Lien Loan Documents relative times of attachment or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lendersperfection thereof), and Second Lien Agentall rights and claims of every kind and nature in and to such Shared Collateral (including third party beneficiary rights and rights to compel performance) by, on behalf in favor of itself and the Second Lien Lenders, hereby agree that:
(1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien the Holdings Agent shall be subordinated to, and thereby enjoy second priority status solely as to, the rights and claims of any kind or any Second Lien Lender that secures all or any portion nature in and to the Shared Collateral (including third party beneficiary rights and rights to compel performance) by, in favor of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien the Bridge Agent (to the extent the security interests in favor of the Bridge Agent in the Shared Collateral shall be in effect and perfected, but regardless of the relative times of attachment or perfection thereof).
(b) In the event that at any time any Shared Collateral is in the possession of the Bridge Agent, First Lien Co-the Bridge Agent or any First Lien Lender that secures all or any portion of shall be deemed to be acting as "bailee" for the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Holdings Agent and the Second Lien Holdings Lenders in accordance with Section 8-301(a)(2) of the Uniform Commercial Code in effect in the State of New York or its equivalent in other jurisdictions for the sole purpose of perfecting the security interest of the Holdings Agent and the Holdings Lenders, and the Bridge Agent shall be deemed to have received notice of such security interest on and as of the date hereof. By executing this Agreement, the Bridge Agent acknowledges that it holds such Shared Collateral on behalf of the Holdings Agent and the Holdings Lenders subject to the first priority security interest therein of the Bridge Agent and the Bridge Lenders.
(c) On the Bridge Termination Date, the Bridge Lender shall deliver the Shared Collateral to secure all or any portion of the Second Lien IndebtednessHoldings Agent and, until the receipt thereof by the Holdings Agent, the Bridge Agent shall continue to act as bailee as provided in subsection (b) above.
Appears in 1 contract
Lien Subordination. (a) Each Subordinated Creditor hereby acknowledges each Loan Party’s grant of first priority Liens in the Collateral to Lender as security for the Lender Indebtedness and agrees that the existence of any such Liens shall not constitute an event of default under the Subordinated Loan Documents.
(b) Subject to the terms and conditions hereof, Lender hereby consents to each Loan Party’s grant of Liens in the Collateral to Subordinated Creditors as security for the Subordinated Indebtedness and agrees that the existence of any such Liens (other than any Lien that may hereafter arise from any judgment obtained against any Loan Party) shall not constitute a Company Event of Default.
(c) Notwithstanding (i) the date, time, method, manner manner, or order of grant, attachment, or perfection of any Liens in the Collateral securing the Subordinated Indebtedness or of any Liens in the Collateral securing the Lender Indebtedness (including, in each case, notwithstanding whether any such Lien is granted to First Lien Agent (or First Lien Co-Agent secures Debt relating to the period) before or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of after the Collateral, (ii) the order or time of filing or recordation commencement of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or Proceeding) and notwithstanding any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) any contrary provision of the UCC, UCC or any other applicable law, any of law or the First Lien Subordinated Loan Documents or the Second Lien Loan Documentsany defect or deficiencies in, (iv) irrespective of whether or failure to attach or perfect, the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowedLender Indebtedness, or (v) any other circumstance whatsoever, each of First Lien Agent Lender and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, Subordinated Creditors hereby agree that:
(1i) any Lien in with respect of all or any portion of to the Collateral securing any Lender Indebtedness, whether such Lien is now or hereafter held by or on behalf of Second Lien Agent of, or created for the benefit of, Lender or any Second Lien Lender that secures all agent or any portion trustee therefor, regardless of the Second Lien Indebtednesshow or when acquired, whether by grant, possession, statute, operation of law, subrogation, or otherwise, shall be senior in all respects be junior and subordinate prior to all Liens granted any Lien with respect to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or securing any portion of the First Lien Subordinated Indebtedness, ; and
(2ii) any Lien in with respect of all or any portion of to the Collateral securing any Subordinated Indebtedness, whether such Lien is now or hereafter held by or on behalf of First Lien Agentof, First Lien Co-Agent or created for the benefit of, Subordinated Creditors or any First Lien Lender that secures all agent or any portion trustee therefor, regardless of the First Lien Indebtedness how or when acquired, whether by grant, possession, statute, operation of law, subrogation, or otherwise, shall be junior and subordinate in all respects to all Liens with respect to the Collateral securing any Lender Indebtedness. All Liens with respect to the Collateral securing any Lender Indebtedness shall be and remain senior in all respects and prior to all Liens granted with respect to Second the Collateral securing any Subordinated Indebtedness, for all purposes, whether or not such Liens securing any Lender Indebtedness are subordinated to any Lien Agent securing any other obligation of the Loan Parties or any other Person (but only to the extent that such subordination is permitted pursuant to the terms of the Credit Agreement and the Second Subordinated Loan Documents, or as contemplated in Section 8.2).
(d) If for any reason any Lien Lenders granted or conveyed by any Loan Party to Lender is set aside or otherwise declared ineffective, in whole or in part, by any court of competent jurisdiction, and if as a consequence thereof any Subordinated Creditor becomes entitled to receive any proceeds from any of the Collateral or on account of such Subordinated Creditor’s Lien in any of the Collateral, then any such payments or proceeds received by such Subordinated Creditor shall be used by it to purchase a junior participation in the Lender Indebtedness pursuant to a junior participation agreement in form and content satisfactory to Lender but in all events providing that Lender’s retained interest in the Lender Indebtedness (including both principal and interest) and all costs and expenses incurred by Lender (including attorneys’ fees) in attempting to collect the Lender Indebtedness or to realize upon any of the Collateral shall be paid in full before such Subordinated Creditor shall be entitled to any payment on account of its junior participation and such Subordinated Creditor’s junior participation will be without recourse of any kind to Lender except for Lender’s gross negligence or willful misconduct after the date of such Subordinated Creditor’s purchase of such junior participation.
(e) Each of the Subordinated Creditors and Lender agrees that it will not (and hereby waives any right to), directly or indirectly, contest, or support any other Person in contesting, in any proceeding (including any Proceeding), the extent, validity, attachment, perfection, priority, or enforceability of a Lien held (i) by or on behalf of the Lender in the Collateral (or the extent, validity, allowability, or enforceability of any Lender Indebtedness secured thereby or purported to secure all be secured thereby) or (ii) by or on behalf of any portion of the Second Subordinated Creditors in the Collateral (or the extent, validity, allowability, or enforceability of any Subordinated Indebtedness secured thereby or purported to be secured thereby), as the case may be, or the provisions of this Agreement; provided, that nothing in this Agreement shall be construed to prevent or impair the rights of Lender and Subordinated Creditors to enforce the terms of this Agreement, including the provisions of this Agreement relating to the priority of the Liens securing the Lender Indebtedness and the Subordinated Indebtedness as provided in this Section 2.
(f) If, at any time, Lender shall subordinate, in whole or in part, its Lien Indebtednessupon any of the Collateral to or in favor of any other Person, the priority of Lender’s Lien in the Collateral vis-a-vis Subordinated Creditors shall not be affected thereby, and Lender’s Lien shall continue to be superior to each Subordinated Creditor’s Lien in the Collateral.
Appears in 1 contract
Samples: Subordination and Intercreditor Agreement (Revolution Lighting Technologies, Inc.)
Lien Subordination. Notwithstanding With respect to any Liens on the ABL Priority Collateral securing the Secured Obligations, such Liens cease to have senior “first priority” status pursuant to an ABL Intercreditor Agreement with respect to Liens on such ABL Priority Collateral securing Indebtedness outstanding under any Term Facility or any Junior Lien Indebtedness, in each case, with an aggregate principal amount outstanding in excess of the Threshold Amount, and (ii) with respect to the provisions in any ABL Intercreditor Agreement subordinating the Liens on the Collateral securing Indebtedness outstanding under any Term Facility or any Junior Lien Indebtedness, in each case, with an aggregate principal amount outstanding in excess of the Threshold Amount, to the Liens on the Collateral securing the Secured Obligations, (A) any Loan Party contests in writing the validity or enforceability thereof, (B) any court of competent jurisdiction in a final non-appealable order, determines such subordination provisions to be invalid or unenforceable, or (C) such subordination provisions otherwise cease to be valid, binding and enforceable obligations of the parties to such ABL Intercreditor Agreement;, then, and in every such event (other than an event with respect to Holdings or the Borrowers described in clause (f) or (g) of this Article) and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Lead Borrower, take any of the following actions, at the same or different times: (i) the date, time, method, manner or order of grant, attachment, or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent terminate theCommitments or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the CollateralAdditional Revolving Commitments, and thereupon such Commitments and/or Additional Revolving Commitments shall terminate immediately, (ii) declare the order Revolving Loans then outstanding to be due and payable in whole (or time in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of filing the Revolving Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or recordation other notice of any document or instrument for perfecting the Liens in favor kind, all of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, which are hereby waived by each Borrower and (iii) any provision require that the US BorrowersBorrower deposit in the US LC Collateral Account and the Canadian Borrower deposits in the Canadian LC Collateral Account, an additional amount in Cash as reasonably requested by the Issuing Banks (not to exceed 101% of the UCCrelevant face amount) of the then outstanding US LC Exposure (minus the amount then on deposit in the US LC Collateral Account) or Canadian LC Exposure (minus the amount then on deposit in the Canadian LC Collateral Account), as applicable; provided that upon the occurrence of an event with respect to Holdings or any Borrower described in clauseclauses (f) or (g) of this Article, any other such Commitments and/or Additional Revolving Commitments applicable lawto the US BorrowersBorrower and to the extent such event is applicable to the Canadian Borrower, any the Canadian Borrower shall automatically terminate and the principal of the First Lien Revolving Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers. Notwithstanding anything to the contrary herein or in any Loan Document, all rights and remedies hereunder and under any other Loan Document or at law or equity, including all remedies provided under the UCC or the PPSA, shall be exercised exclusively by the Administrative Agent for the benefit of the Secured Parties. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity, including all remedies provided under the Second Lien Loan Documents, (iv) irrespective of whether UCC or the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien IndebtednessPPSA.
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Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the or grant, attachment or perfection of any Liens in favor of First Lien Agent (or First Lien Co-Agent granted to any Second Priority Representative or any First Lien Lender) other Second Priority Debt Parties on the Collateral or Second Lien Agent of any Liens granted to the Senior Representative or any other Senior Secured Party on the Collateral (or any Second Lien Lender) actual or alleged defect in any Collateralof the foregoing) or any defect or deficiencies in, (iii) or failure to perfect or lapse in perfection of, or avoidance as a fraudulent conveyance or otherwise and notwithstanding any provision of the UCC, any other applicable law, any of the First Lien Loan Documents Second Priority Debt Document or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed any Senior Debt Document or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agentthe Senior Representative, on behalf of itself and the First Lien Lenderseach other Senior Secured Party, and the Second Lien AgentPriority Representative, on behalf of itself and the each other Second Lien LendersPriority Debt Party, hereby agree that:
agrees that (1a) any Lien in respect of all or any portion of on the Collateral securing any Senior Priority Obligations now or hereafter held by or on behalf of Second Lien Agent the Senior Representative, any other Senior Secured Party or any Second Lien Lender that secures all other agent or any portion trustee therefor, regardless of the Second Lien Indebtednesshow acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects be junior and subordinate prior to all Liens granted to First any Lien Agent, First Lien Co-Agent and the First Lien Lenders in on the Collateral to secure all or securing any portion of the First Lien IndebtednessSecond Priority Debt Obligations, and
(2b) any Lien in respect of all or any portion of on the Collateral securing any Second Priority Debt Obligations now or hereafter held by or on behalf of First Lien Agentthe Second Priority Representative, First Lien Co-Agent any other Second Priority Debt Party or any First Lien Lender that secures all other agent or any portion trustee therefor, regardless of the First Lien Indebtedness how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Collateral securing any Senior Priority Obligations, (c) any Lien on the Collateral securing any Second Priority Debt Obligations now or hereafter held by or on behalf of the Second Priority Representative, any other Second Priority Debt Party or other agent or trustee therefor, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects and prior to any Lien on the Collateral securing any Excess Senior Obligations, and (d) any Lien on the Collateral securing any Excess Senior Obligations now or hereafter held by or on behalf of the Senior Representative, any other Senior Secured Party or any other agent or trustee therefor, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Collateral securing any Second Priority Debt Obligations. All Liens on the Collateral (i) securing any Senior Priority Obligations shall be and remain senior in all respects and prior to all Liens granted on the Collateral securing any Second Priority Debt Obligations for all purposes, whether or not such Liens securing any Senior Priority Obligations are subordinated to any Lien securing any other obligation of the Company, any Grantor or any other Person or otherwise subordinated, voided, avoided, invalidated or lapsed, and (ii) securing any Second Priority Debt Obligations shall be and remain senior in all respects and prior to all Liens on the Collateral securing any Excess Senior Obligations for all purposes, whether or not such Liens securing any Second Priority Debt Obligations are subordinated to any Lien Agent securing any other obligation of the Company, any Grantor or any other Person or otherwise subordinated, voided, avoided, invalidated or lapsed. For the avoidance of doubt, the subordination provided for in this Agreement is lien subordination only and the Second Lien Lenders Priority Debt Obligations are not subordinated in right of payment to the Collateral Senior Obligations. Other than to secure the extent constituting secured claims on the Collateral, all or any portion debt claims of the Senior Secured Parties and the Second Lien IndebtednessPriority Debt Parties are intended to be pari passu.
Appears in 1 contract
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second any Junior Lien Agent (or any Second Junior Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second any Junior Lien Agent (or any Second Junior Lien Lender) in any Collateral, (iii) any provision of the UCC, any other applicable law, any of the First Lien Loan Documents or the Second Junior Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and New Second Lien Agent, on behalf of itself and the Second Lien LendersLenders and Existing Second Lien Agent, on behalf of itself and the Existing Second Lien Lenders hereby agree agrees that:
(1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second any Junior Lien Agent or any Second Junior Lien Lender that secures all or any portion of the Second Junior Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and,
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to any Junior Lien Agent and any of the Junior Lien Lenders in the Collateral to secure all or any portion of the Junior Lien Indebtedness,
(3) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Existing Second Lien Agent or any Existing Second Lien Lender that secures all or any portion of the Existing Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to New Second Lien Agent and any of the New Second Lien Lenders in the Collateral to secure all or any portion of the New Second Lien IndebtednessIndebtedness as provided in the Junior Intercreditor Agreement, and
(4) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of New Second Lien Agent or any New Second Lien Lender that secures all or any portion of the New Second Lien Indebtedness shall in all respects be senior and prior to all Liens granted to the Existing Second Lien Agent and any of the Existing Second Lien Lenders in the Collateral to secure all or any portion of the Existing Second Lien Indebtedness as provided in the Junior Intercreditor Agreement.
Appears in 1 contract
Samples: Intercreditor Agreement (Salton Inc)
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, attachment or perfection of any Liens granted to First Junior Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all any Collateral or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens Senior Lien in favor respect of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) Collateral and notwithstanding any provision of the UCC, PPSA, any other applicable law, any Security Document, any alleged or actual defect or deficiency in any of the First Lien Loan Documents foregoing or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent the ABL Representative, for and First Lien Co-Agent, on behalf of itself the ABL Secured Creditors, and the First Lien LendersTerm Loan Representative, for and Second Lien Agent, on behalf of itself and the Second Lien LendersTerm Loan Secured Creditors, hereby acknowledge and agree that:
(1a) the Liens in favor of the ABL Representative on the ABL Priority Collateral securing the ABL Obligations (regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, and whether or not the Liens in favor of the ABL Representative on such ABL Priority Collateral are subordinated to any Lien on the ABL Priority Collateral securing any other obligation) shall be and shall remain senior and prior to any Lien on the ABL Priority Collateral in favor of the Term Loan Representative securing the Term Loan Obligations;
(b) any Lien in respect of all or any portion favor of the Term Loan Representative on the ABL Priority Collateral now securing the Term Loan Obligations (regardless of how acquired, whether by grant, statute, operation of law, subrogation or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, otherwise) shall be and shall remain junior and subordinated in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and on the First Lien Lenders ABL Priority Collateral in the Collateral to secure all or any portion favor of the First ABL Representative securing the ABL Obligations;
(c) the Liens in favor of the Term Loan Representative on the Term Loan Priority Collateral securing the Term Loan Obligations (regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, and whether or not the Liens in favor of the Term Loan Representative on such Term Loan Priority Collateral are subordinated to any Lien Indebtedness, on the Term Loan Priority Collateral securing any other obligation) shall be and shall remain senior and prior to the Liens on the Term Loan Priority Collateral in favor of the ABL Representative securing the ABL Obligations; and
(2d) any Lien in respect of all or any portion favor of the ABL Representative on the Term Loan Priority Collateral now securing the ABL Obligations (regardless of how acquired, whether by grant, statute, operation of law, subrogation or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness otherwise) shall be and shall remain junior and subordinated in all respects be senior and prior to all Liens granted to Second Lien Agent and on the Second Lien Lenders Term Loan Priority Collateral in the Collateral to secure all or any portion favor of the Second Lien IndebtednessTerm Loan Representative securing the Term Loan Obligations.
Appears in 1 contract
Lien Subordination. Notwithstanding Subordinated Creditor hereby unconditionally agrees that: (i) all Liens of the Subordinated Creditor in any property of either Obligor shall be and hereby are subordinated to the Senior Liens, and (ii) other than as set forth in Section 2.7(b), the Subordinated Creditor shall have no right to possession of any property of any Obligor or to take any Subordinated Collection Action, unless and until all the Senior Indebtedness shall have been fully paid and satisfied and the Commitments have been terminated. Notwithstanding any rights or remedies available to Subordinated Creditor under applicable law (including, without limitation, under the Bankruptcy Code) or under any Subordinated Debt Document, Subordinated Creditor shall not, without the prior written consent of Senior Lender, be permitted to take any action to foreclose, repossess, marshal, control or exercise any remedies with respect to any property of the either Obligor or take any other action which would interfere with or impair the Senior Liens or the rights of Senior Lender against the either Obligor’s property, until the payment in full of the Senior Indebtedness and the termination of the Commitments. Notwithstanding the date, time, method, manner or order of grant, attachment, attachment or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the CollateralSenior Liens, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) and notwithstanding any provision of the UCC, UCC or any other applicable law, any of the First Lien Loan Documents law or the Second Lien Loan Documents, (iv) irrespective provisions of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed any Subordinated Debt Document or allowed, any other Senior Debt Document or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien LendersSubordinated Creditor, hereby agree that:
agrees that (1a) any Lien in respect of all or any portion of the Collateral Senior Liens now or hereafter held by or on behalf for the benefit of Second Lien Agent or Senior Lender shall be senior in right, priority, operation, effect and all other respects to any Second Lien Lender that secures and all or any portion of the Second Lien Indebtedness, shall in all respects be junior Subordinated Creditor Liens and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2b) any Subordinated Creditor Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf for the benefit of First any Subordinated Creditor shall be junior and subordinate in right, priority, operation, effect and all other respects to any and all Senior Liens. The Senior Liens shall be and remain senior in right, priority, operation, effect and all other respects to any Subordinated Creditor Liens for all purposes, whether or not any Senior Liens are subordinated in any respect to any other Lien Agentsecuring any other obligation of either Obligor, First Lien Co-Agent any other grantor or any First other Person and regardless of whether the Lien Lender that secures all purported to be granted is found to be improperly granted, improperly perfected, a fraudulent conveyance or legally or otherwise deficient in any portion manner. Each of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent Senior Lender, and the Second Lien Lenders Subordinated Creditor, agrees that it will not, and hereby waives any right to, directly or indirectly, contest or support any other Person in contesting, in any proceeding (including any Proceeding), the Collateral to secure all priority, validity or enforceability of any portion Senior Lien, or the validity or enforceability of the Second Lien Indebtednesspriorities, rights or obligations established by this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of the Senior Lender to enforce this Agreement. Each Obligor, by its execution of this Agreement, hereby acknowledges and agrees to the provisions of this paragraph, notwithstanding anything to the contrary in any document to which such Obligor is a party.
Appears in 1 contract
Samples: Subordination and Intercreditor Agreement (Ibf Vi Guaranteed Income Fund)
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, attachment or perfection of any Liens granted to First Lien the Collateral Agent (for the Term Loan Agent and the Term Lenders on the Collateral or First Lien Co-of any Liens granted to the Collateral Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion for the benefit of the Collateral, (ii) Revolving Credit Agent and the order or time of filing or recordation of any document or instrument for perfecting Revolving Credit Lenders on the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) Collateral and notwithstanding any provision of the UCC, or any other applicable law, any of law or the First Lien Loan Credit Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoeverwhatsoever and notwithstanding that all of the Secured Obligations are secured by a single set of Collateral Documents in favor of all of the Secured Parties rather than separate security documents senior and subordinated as applicable to the relative priorities set forth herein in favor of each class of Secured Parties, each of First Lien Agent and First Lien Co-the Term Loan Agent, on behalf of itself and the First Lien Term Lenders, and Second hereby agrees that: (a) any Lien Agent, on the Collateral securing any Revolving Credit Obligations (subject to the limitation set forth in Section 3.04) now or hereafter held by or on behalf of itself the Revolving Credit Agent or any Revolving Credit Lenders or any agent or trustee therefore or any other holder of Revolving Credit Obligations shall be senior in all respects and prior to any Lien on the Second Lien Lenders, hereby agree that:
Collateral securing any of the Term Loan Obligations; and (1b) any Lien in respect of all or any portion of on the Collateral now or hereafter held by or on behalf of Second Lien the Term Loan Agent or any Second Lien Lender that secures all Term Lenders or any portion agent or trustee therefor in respect of the Second Lien IndebtednessTerm Loan Obligations regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall in all respects be junior and subordinate in all respects to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in on the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of securing such Revolving Credit Obligations. All Liens on the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or securing any First Lien Lender that secures all or any portion of Revolving Credit Obligations (subject to the First Lien Indebtedness limitation set forth in Section 3.04) shall be and remain senior in all respects be senior and prior to all Liens granted on the Collateral securing any Term Loan Obligations for all purposes, whether or not such Liens securing any Revolving Credit Obligations are subordinated to Second any Lien securing any other obligation of the Borrower or any other Obligor. Each of the parties hereto acknowledges and agrees that use of the Collateral Documents rather than separate security documents is for the convenience of the Secured Parties only and, except as provided in this Agreement, is not intended and will not be construed or given effect to limit, abridge or otherwise affect the rights, powers and privileges which the Revolving Credit Agent and the Second Revolving Credit Lenders, on the one hand, and the Term Loan Agent and the Term Lenders, on the other hand, would have possessed and/or enjoyed, as the owners and holders, as a class, of a separate, first and unsubordinated Lien Lenders upon all of the Collateral, in the Collateral to secure all or any portion case of the Second holders of the Revolving Credit Obligations, and a separate, second Lien Indebtednessupon all of the Collateral, in the case of the holders of the Term Loan Obligations. The Term Loan Agent hereby acknowledges and agrees that the Revolving Credit Agent and the Revolving Credit Lenders would not have agreed to the Revolving Credit Agreement in the absence of the execution and delivery of this Agreement by the parties hereto.
Appears in 1 contract
Samples: Collateral Agency and Intercreditor Agreement (Chart Industries Inc)
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order respective dates of grant, attachment, attachment or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent the security interests of CRG Creditors and the security interests of [A/R Lender], or any First Lien Lender) or Second Lien Agent (contrary provision of the UCC, or any Second Lien applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [A/R Lender) in respect ] or any CRG Creditor holds possession of all or any portion part of the Collateral, (i) all now existing and hereafter arising security interests of [A/ [†] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION R Lender] in any A/R Facility Senior Collateral shall at all times be senior to the security interests of CRG Creditors in such A/R Facility Senior Collateral, and (ii) the order or time all now existing and hereafter arising security interests of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) CRG Creditors in any CRG Senior Collateral shall at all times be senior to any interests, including the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, (iii) [A/R Lender] agrees and acknowledges that it shall not receive, and [neither Borrower nor any provision of the UCCObligor shall grant][Borrower shall not grant], any other applicable law, any security interest to [A/R Lender] in the CRG Senior Collateral.
(a) Each of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent [A/R Lender] and First Lien Co-CRG Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree thatCRG Creditors:
(1i) acknowledges and consents to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any Lien and all financing statements and other documents as reasonably deemed necessary by the other Creditor in respect order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of all the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any portion other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(b) Subject to Section 2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtednessparties hereto.
Appears in 1 contract
Lien Subordination. Notwithstanding (a) Any and all Junior Liens on Common Collateral now existing or hereafter created or arising, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, are expressly junior in priority, operation and effect to any and all Senior Liens on such Common Collateral now existing or hereafter created or arising, notwithstanding (i) anything to the datecontrary contained in any agreement or filing to which any Secured Party may now or hereafter be a party, and regardless of the time, method, manner order or order method of grant, attachment, recording or perfection of any Liens granted to First Lien Agent (financing statements or First Lien Co-Agent other security interests, assignments, pledges, deeds, mortgages and other liens, charges or encumbrances or any First Lien Lender) defect or Second Lien Agent (deficiency or alleged defect or deficiency in any Second Lien Lender) in respect of all or any portion of the Collateralforegoing, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) any provision of the UCC, UCC or any other applicable law, law or any of the First Lien Loan Documents Facility Document or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each and (iii) the fact that any such Senior Liens are (A) subordinated to any Lien securing any obligation of First Lien Agent and First Lien Co-Agentany Grantor other than the CoBank Secured Obligations or Notes Secured Obligations or (B) otherwise subordinated, on behalf of itself and the First Lien Lendersvoided, and Second Lien Agentavoided, on behalf of itself and the Second Lien Lenders, hereby agree that:invalidated or lapsed.
(1b) No Secured Party shall object to or contest, or support any other Person in contesting or objecting to, in any proceeding (including without limitation, any Insolvency Proceeding), the validity, extent, perfection, or enforceability of any security interest in the Common Collateral granted to any other Secured Party, nor the priority of such security interest as set forth herein. No Secured Party shall take, or cause to be taken, any action for the purpose of making any Junior Lien on Common Collateral pari passu with or senior to any Senior Lien on such Common Collateral. It is understood that nothing in respect this Section 2.1(b) is intended to prohibit any Secured Party from exercising any rights expressly granted to it under this Agreement.
(c) Notwithstanding any failure by any Secured Party to perfect any or all of all its security interests in any Common Collateral or any portion avoidance, invalidation or subordination by any third party or court of competent jurisdiction of any or all of the security interests in any Common Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agentsuch Secured Party, First Lien Co-Agent the priority and rights as among the First Lien Lenders in Secured Parties with respect to the Common Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtednessas set forth herein.
Appears in 1 contract
Lien Subordination. (a) Each holder of the Note hereby agrees that any Lien that it may now or hereafter have in the Collateral is subject and subordinate, to the extent and in the manner provided herein, to any Liens that the Agent or the holder(s) of the Bank Indebtedness may now or hereafter have in the Collateral to secure the Bank Indebtedness. Each holder of the Note agrees that, except as otherwise provided in Section 4.4 hereof, they shall have no right to undertake any Enforcement Action with respect to any of the Collateral, unless and until all of the holder(s) of Bank Indebtedness shall have been paid in full and the commitments thereunder and the commitments, if any, of the holders of the Senior Indebtedness to extend credit accommodations to Quantum or the Company have expired (and in any event subject to the limitations set forth in Section 4.4 hereof with respect to any Enforcement Action taken in connection with any Insolvency Proceeding).
(b) Notwithstanding any Lien in the Collateral now or hereafter acquired by any holder of the Note, the holder(s) of the Bank Indebtedness may take possession of, sell, dispose of, and otherwise deal with all or any part of the Collateral, and may enforce any right or remedy available to it with respect to the Collateral, all without notice to or consent of the holder(s) of the Note except as specifically required by applicable law. Without limiting the generality of the foregoing, if (i) the date, time, method, manner Company or order of grant, attachment, any other Person that has granted a Lien in any Collateral intends to sell or perfection otherwise dispose of any Liens granted Collateral to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect an unrelated third party outside the ordinary course of all or any portion of the Collateralbusiness, (ii) the holder(s) of Bank Indebtedness has consented to such sale or disposition and has given written notice thereof to the holder(s) of the Note, (iii) the holder(s) of the Note have failed, within fifteen (15) days after receipt of such notice, to purchase for cash the Bank Indebtedness in accordance with Article XII hereof, and (iv) the holder(s) of the Bank Indebtedness has applied the net cash proceeds of such sale or disposition to the holder(s) of the Bank Indebtedness in accordance with clause (c) below, each holder of the Note shall be deemed to have consented to such sale or disposition, to have released any Lien it may have in such Collateral and to have authorized the Agent or its agents to file partial releases with respect to such Collateral.
(c) The holder(s) of the Senior Indebtedness shall have no duty to preserve, protect, care for, insure, take possession of, collect, dispose of, or otherwise realize upon any of the Collateral, and in no event shall the holder(s) of the Senior Indebtedness be deemed to be any holder of the Note’s agent with respect to the Collateral. All proceeds received by the holder(s) of the Senior Indebtedness with respect to any Collateral shall be applied by the holder(s) of the Senior Indebtedness to the Senior Indebtedness secured by such Collateral in such order of application as the holder(s) of the Senior Indebtedness may choose.
(d) Notwithstanding anything to the contrary in the Note or time the Purchase Agreement, unless and until all of filing the holder(s) of the Senior Indebtedness shall have been paid in full and the commitments, if any, of the holders of the Bank Indebtedness to extend credit accommodations to Quantum or recordation the Company have expired, no holder of the Note shall request or require that the Company or any other Person that has granted a Lien in any Collateral (i) obtain from any bailee holding any item of Collateral any acknowledgement or other document confirming that such bailee holds such collateral for the benefit of any document holder of the Note, (ii) obtain from any securities intermediary, letter of credit issuer, depository bank or instrument for perfecting other party holding or issuing any item of Collateral, any control agreements, (iii) deliver to any holder of the Liens in favor Note any instruments or documents comprising Collateral or endorsements or assignments of First same, (iv) obtain possession of or arrange to have the holder of the Note’s Lien Agent noted on any motor vehicle titles, (v) obtain waivers from any landlords or First Lien Co-Agent mortgagees of any property where any inventory or equipment constituting Collateral is located, (vi) record with the United States Patent and Trademark Office or the United States Copyright Office any collateral assignments of, or security agreements granting or reflecting a security interest in, any registered intellectual property owned by the Company or any First other Person that has granted a Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, or (iiivii) establish or deposit any provision of amounts into any deposit account, collateral account or lockbox owned by or relating to the UCC, Company or any other applicable law, any of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1) any Person that has granted a Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien IndebtednessCollateral.
Appears in 1 contract
Lien Subordination. (a) Notwithstanding (i) the date, time, method, manner or order respective dates of grant, attachment, attachment or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent the security interests of CRG Creditors and the security interests of [A/R Lender], or any First Lien Lender) or Second Lien Agent (contrary provision of the UCC, or any Second Lien applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [A/R Lender) in respect ] or any CRG Creditor holds possession of all or any portion part of the Collateral, (i) all now existing and hereafter arising security interests of [A/R Lender] in any A/R Facility Senior Collateral shall at all times be senior to the security interests of CRG Creditors in such A/R Facility Senior Collateral, and (ii) the order or time all now existing and hereafter arising security interests of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) CRG Creditors in any CRG Senior Collateral shall at all times be senior to any interests, including the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, (iii) [A/R Lender] agrees and acknowledges that it shall not receive, and neither Borrower nor any provision of the UCCObligor shall grant, any other applicable law, any security interest to [A/R Lender] in the CRG Senior Collateral.
(b) Each of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent [A/R Lender] and First Lien Co-CRG Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree thatCRG Creditors:
(1i) acknowledges and consents to (A) each Obligor granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any Lien and all financing statements and other documents as reasonably deemed necessary by the other Creditor in respect order to perfect its security interest in its Common Collateral, and (C) each Obligor’s entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of all the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any portion other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtednessparties hereto.
Appears in 1 contract
Lien Subordination. Notwithstanding (ia) Bank Security Interests in the dateCollateral securing Senior Debt shall be senior and prior in right to the Security Interests. The Trustee and each Holder acknowledge that the rights of the Bank Lenders in respect of Senior Debt to receive proceeds from the disposition of the Collateral is senior to the rights of the Holders to receive proceeds from the disposition of the Collateral. Bank Security Interests in the Collateral securing Senior Subordinated Debt are PARI PASSU with the Security Interests, timeand the rights of Bank Lenders in respect of Senior Subordinated Debt to receive proceeds from the disposition of the Collateral is PARI PASSU with the rights of the Holders, methodor the Trustee on their behalf, manner or to receive proceeds from the disposition of the Collateral.
(b) The priorities set forth in this Section 4.6 are applicable irrespective of the order of grantcreation, attachment, attachment or perfection of any Liens granted or security interests or any priority that might otherwise be available to First Lien Agent the Holders, the Trustee, or any Bank Lender under the applicable law.
(c) The priorities set forth in this Section 4.6 are premised upon the assumption that the Bank Security Interests are duly and properly created and perfected and are not avoidable for any reason. Accordingly, to the extent that (but only for so long as) any Bank Security Interests are not duly and properly created and perfected or are avoidable for any reason, then the subordinations provided for in this Section 4.6 shall not be effective as to the particular Collateral subject to such Bank Security Interests; provided, however, that the Trustee and each Holder, by accepting a Security, agree not to contest, or to bring (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iiivoluntarily join in) any provision action or proceeding for the purpose of contesting the UCCvalidity, perfection or priority (as herein provided) of, or seeking to avoid, any other applicable law, any of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien LendersBank Security Interests, and Second Lien Agentprovided further, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1) that nothing herein shall be deemed or construed to prevent any Lien Bank Lender from commencing an action or proceeding to assert any right or claim it may have arising under or in respect of all or connection with any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien IndebtednessDocuments.
Appears in 1 contract
Samples: Indenture (Jazz Casino Co LLC)
Lien Subordination. Notwithstanding These Notes and the Subsidiary Guarantees are secured by Second-Priority Liens upon the Collateral pursuant to certain Security Documents. The Second-Priority Liens upon any and all Collateral are, to the extent and in the manner provided in the Intercreditor Agreement, subordinate in ranking to all present and future First-Priority Liens as set forth in Article Ten of the Indenture and in the Intercreditor Agreement. Casella will furnish to any Holder upon written request and without charge a copy of the Indenture. I or we assign and transfer this Note to (Print or type name, address and zip code of assignee or transferee) (Insert Social Security or other identifying number of assignee or transferee) and irrevocably appoint agent to transfer this Note on the books of Casella. The agent may substitute another to act for him. Dated: Signed: (Sign exactly as name appears on the other side of this Note) Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor program reasonably acceptable to the Trustee) In connection with any transfer of this Note occurring prior to the date which is the earlier of (i) the date, time, method, manner or order of grant, attachment, or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion date of the Collateraldeclaration by the Commission of the effectiveness of a registration statement under the Securities Act of 1933, as amended (the “Securities Act”), covering resales of this Note (which effectiveness shall not have been suspended or terminated at the date of the transfer) and (ii) the order date this Note becomes Freely Tradable, the undersigned confirms that it has not utilized any general solicitation or time of filing or recordation of any document or instrument for perfecting general advertising in connection with the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) any provision of the UCC, any other applicable law, any of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:transfer: [Check One]
(1) any Lien in respect of all o to Casella or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, anda subsidiary thereof; or
(2) any Lien o pursuant to and in respect compliance with Rule 144A under the Securities Act; or
(3) o to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) that has furnished to the Trustee a signed letter containing certain representations and agreements (the form of all or any portion which letter can be obtained from the Trustee); or
(4) o outside the United States to a “foreign purchaser” in compliance with Rule 904 of Regulation S under the Securities Act; or
(5) o pursuant to the exemption from registration provided by Rule 144 under the Securities Act; or
(6) o pursuant to an effective registration statement under the Securities Act; or
(7) o pursuant to another available exemption from the registration statement requirements of the Collateral now or hereafter held by or on behalf Securities Act of First Lien Agent1933; and unless the box below is checked, First Lien Co-Agent or any First Lien Lender the undersigned confirms that secures all or any portion such Note is not being transferred to an “affiliate” of Casella as defined in Rule 144 under the Securities Act (an “Affiliate”): o The transferee is an Affiliate of Casella. Unless one of the First Lien Indebtedness shall items is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in all respects be senior and the name of any person other than the registered Holder thereof; provided, however, that if item (3), (4), (5) or (7) is checked, Casella or the Trustee may require, prior to all Liens granted to Second Lien Agent and registering any such transfer of the Second Lien Lenders Notes, in their sole discretion, such written legal opinions, certifications (including an investment letter in the Collateral case of box (3) or (4)) and other information as the Trustee or Casella has reasonably requested to secure all confirm that such transfer is being made pursuant to an exemption from, or any portion in a transaction not subject to, the registration requirements of the Second Lien IndebtednessSecurities Act. If none of the foregoing items are checked, the Trustee or Registrar shall not be obligated to register this Note in the name of any person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 2.16 of the Indenture shall have been satisfied.
Appears in 1 contract
Lien Subordination. (a) Notwithstanding (i) the date, time, method, manner or order respective dates of grant, attachment, attachment or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent the security interests of CRG Creditors and the security interests of A/R Lender, or any First Lien Lender) or Second Lien Agent (contrary provision of the UCC, or any Second Lien Lender) in respect applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether A/R Lender or any CRG Creditor holds possession of all or any portion part of the Collateral, (i) all now existing and hereafter arising security interests of A/R Lender in any A/R Facility Senior Collateral shall at all times be senior to the security interests of CRG Creditors in such A/R Facility Senior Collateral, and (ii) the order or time all now existing and hereafter arising security interests of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) CRG Creditors in any CRG Senior Collateral shall at all times be senior to any interests, including the security interests of A/R Lender in such CRG Senior Collateral. Notwithstanding the foregoing, (iii) A/R Lender agrees and acknowledges that it shall not receive, and neither Borrower nor any provision of the UCCObligor shall grant, any other applicable law, any security interest to A/R Lender in the CRG Senior Collateral.
(b) Each of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent A/R Lender and First Lien Co-CRG Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree thatCRG Creditors:
(1i) acknowledges and consents to (A) Borrower granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any Lien and all financing statements and other documents as reasonably deemed necessary by the other Creditor in respect order to perfect its security interest in its Common Collateral, and (C) Borrower’s entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of all the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, A/R Lender shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any portion other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtednessparties hereto.
Appears in 1 contract
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the or method of grant, attachment or perfection of any Liens in favor of First Lien Agent (or First Lien Co-Agent granted to any Second Priority Representative or any First Lien Lender) Second Priority Debt Parties on the Shared Collateral or Second Lien Agent of any Liens granted to any Senior Representative or any other Senior Secured Party on the Shared Collateral (or any Second Lien Lender) actual or alleged defect in any Collateral, (iiiof the foregoing) and notwithstanding any provision of the UCC, any other applicable law, any Second Priority Debt Document or any Senior Debt Document or any defect or deficiencies in the Liens or other circumstance whatsoever (including any non-perfection of any Lien to secure the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoeverInventory Financing Obligations), each of First Lien Agent and First Lien Co-AgentSecond Priority Representative, on behalf of itself and the First Lien Lenders, and each Second Lien Agent, on behalf of itself and the Priority Debt Party under its Second Lien LendersPriority Debt Facility, hereby agree that:
agrees that (1i) any Lien in respect of all on (or any portion of purchase money security interest with respect to) the Shared Collateral securing or purporting to secure any Senior Obligations now or hereafter held by or on behalf of Second Lien Agent any Senior Representative or any Second Lien Lender that secures all other Senior Secured Party or any portion other agent or trustee therefor, regardless of the Second Lien Indebtednesshow acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects be junior and subordinate prior to all Liens granted to First any Lien Agent, First Lien Co-Agent and on the First Lien Lenders in the Shared Collateral securing or purporting to secure all or any portion of the First Lien Indebtedness, and
Second Priority Debt Obligations and (2ii) any Lien in respect of all on the Shared Collateral securing or purporting to secure any portion of the Collateral Second Priority Debt Obligations now or hereafter held by or on behalf of First Lien Agentany Second Priority Representative, First Lien Co-Agent any Second Priority Debt Parties or any First Lien Lender that secures all Second Priority Representative or any portion other agent or trustee therefor, regardless of the First Lien Indebtedness how acquired, whether by xxxxx, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Shared Collateral securing or purporting to secure any Senior Obligations. All Liens on the Shared Collateral securing or purporting to secure any Senior Obligations shall be and remain senior in all respects and prior to all Liens granted to Second Lien Agent and on the Second Lien Lenders in the Shared Collateral securing or purporting to secure any Second Priority Debt Obligations for all purposes, whether or not such Liens securing or purporting to secure any Senior Obligations are subordinated to any Lien securing any other obligation of the Company, any Grantor or any portion of the Second Lien Indebtednessother Person or otherwise subordinated, voided, avoided, invalidated or lapsed.
Appears in 1 contract
Lien Subordination. Notwithstanding (ia) The Subordinated Debt shall be unsecured and the dateCompany shall not grant any Liens to secure any of the Subordinated Debt. To the extent any Lien is ever granted, timethe Senior Debt, methodthe Securities Purchase Agreements and the other Transaction Documents and any and all other documents and instruments evidencing or creating the Senior Debt and all guaranties, manner mortgages, security agreements, pledges and other collateral guarantying or order securing the Senior Debt or any part thereof shall be senior to the Subordinated Debt and the Subordinated Documents irrespective of grantthe time of the execution, attachment, delivery or issuance of any thereof or the filing or recording for perfection of any Liens granted thereof or the filing of any financing statement or continuation statement relating to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion thereof. Each Subordinated Creditor hereby agrees, upon request of the CollateralSenior Creditors at any time and from time to time, (ii) to execute such other documents or instruments as may be requested by the order Senior Creditors further to evidence of public record or time of filing or recordation of any document or instrument for perfecting otherwise the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) any provision senior priority of the UCC, any other applicable law, any Senior Debt as contemplated hereby. Each Subordinated Creditor further agrees to maintain on its books and records such notations as the Senior Creditors may reasonably request to reflect the subordination contemplated hereby and to perfect or preserve the rights of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:Senior Creditors hereunder.
(1b) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien IndebtednessEach Subordinated Creditor agrees that, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
within two (2) days following the Senior Creditors’s written request therefor, such Subordinated Creditor will execute, deliver and file any Lien and all such termination statements, mortgage discharges, lien releases and other agreements and instruments as the Senior Creditors reasonably deem necessary or appropriate in respect order to give effect to the preceding sentence. Each Subordinated Creditor hereby irrevocably appoints the Senior Creditors, and their respective successors and assigns, and their respective officers, with full power of all or substitution, the true and lawful attorney(s) of such Subordinated Creditor for the purpose of effecting any portion such executions, deliveries and filings if and to the extent that such Subordinated Creditor shall have failed to perform such obligations pursuant to the foregoing provisions of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtednessthis Section 8(b) within such period.
Appears in 1 contract
Lien Subordination. (a) Notwithstanding (i) the date, time, method, manner or order respective dates of grant, attachment, attachment or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent the security interests of CRG Creditors and the security interests of [A/R Lender], or any First Lien Lender) or Second Lien Agent (contrary provision of the UCC, or any Second Lien applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [A/R Lender) in respect ] or any CRG Creditor holds possession of all or any portion part of the Collateral, (i) all now existing and hereafter arising security interests of [A/R Lender] in any A/R Facility Senior Collateral shall at all times be senior to the security interests of CRG Creditors in such A/R Facility Senior Collateral, and (ii) the order or time all now existing and hereafter arising security interests of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) CRG Creditors in any CRG Senior Collateral shall at all times be senior to any interests, including the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, (iii) [A/R Lender] agrees and 137168310 v21 acknowledges that it shall not receive, and [neither Borrower nor any provision of the UCCObligor shall grant][Borrower shall not grant], any other applicable law, any security interest to [A/R Lender] in the CRG Senior Collateral.
(b) Each of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent [A/R Lender] and First Lien Co-CRG Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree thatCRG Creditors:
(1i) acknowledges and consents to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any Lien and all financing statements and other documents as reasonably deemed necessary by the other Creditor in respect order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of all the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any portion other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtednessparties hereto.
Appears in 1 contract
Samples: Term Loan Agreement (Omeros Corp)
Lien Subordination. (a) Notwithstanding (i) the date, time, method, manner respective dates of attachment or order sf-3740373 perfection of grant, attachmentthe security interests of Existing Creditors and the security interests of LSQ, or perfection any contrary provision of any Liens granted to First Lien Agent (or First Lien Co-Agent the UCC, or any First Lien Lender) applicable law or Second Lien Agent (decision, or the provisions of the Credit Documents, and irrespective of whether LSQ or any Second Lien Lender) in respect Existing Creditor holds possession of all or any portion part of the Collateral, (i) all now existing and hereafter arising security interests of LSQ in any A/R Facility Senior Collateral shall at all times be senior to the security interests of Existing Creditors in such A/R Facility Senior Collateral, and (ii) the order or time all now existing and hereafter arising security interests of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) Existing Creditors in any Existing Senior Collateral shall at all times be senior to any security interests of LSQ in such Existing Senior Collateral, .
(iiib) any provision Each of the UCC, any other applicable law, any of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, LSQ and each of First Lien Agent and First Lien Co-Existing Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree thatapplicable Existing Creditors:
(1i) acknowledges and consents to (A) Borrower granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any Lien and all financing statements and other documents as reasonably deemed necessary by the other Creditor in respect order to perfect its security interest in its Common Collateral, and (C) Borrower’s entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of all the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, LSQ shall not take any action seeking to recharacterize any Intellectual Property or equipment, the proceeds of either, or any portion other Existing Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtednessparties hereto.
Appears in 1 contract
Samples: Intercreditor Agreement (Marrone Bio Innovations Inc)
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Senior Agent (or any Second Lien Senior Lender) or Junior Agent (or any Junior Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Senior Agent (or any Second Lien Senior Lender) or Junior Agent (or any Junior Lender) in any Collateral, (iii) any provision of the UCC, any other applicable law, any of the First Lien Senior Loan Documents or the Second Lien Junior Loan Documents, (iv) except to the extent set forth below, irrespective of whether the Liens securing the First Lien Senior Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) except to the extent set forth below, any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Senior Agent, on behalf of itself and the First Lien Senior Lenders, and Second Lien Junior Agent, on behalf of itself and the Second Lien Junior Lenders, hereby agree that:
(1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Junior Agent or any Second Lien Junior Lender that secures all or any portion of the Second Lien Junior Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Senior Agent and the First Lien Senior Lenders in the Collateral to secure all or any portion of the First Lien IndebtednessSenior Indebtedness up to the Maximum Priority Senior Loan Amount except to the extent that such Liens of Senior Agent and the Senior Lenders are invalid, unenforceable, void, avoidable, subordinated, disputed or not allowed as a result of any action taken by Senior Agent, or any failure by Senior Agent to take any action, with respect to any financing statement (including any amendment to or continuation thereof), mortgage, intellectual property filing or other perfection document, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Senior Agent or any First Lien Senior Lender that secures all or any portion of the First Lien Senior Indebtedness up to the Maximum Priority Senior Loan Amount shall in all respects be senior and prior to all Liens granted to Second Lien Junior Agent and the Second Lien Junior Lenders in the Collateral to secure all or any portion of the Second Junior Indebtedness except to the extent that such Liens of Senior Agent and the Senior Lenders are invalid, unenforceable, void, avoidable, subordinated, disputed or not allowed as a result of any action taken by Senior Agent, or any failure by Senior Agent to take any action, with respect to any financing statement (including any amendment to or continuation thereof), mortgage, intellectual property filing or other perfection document. Notwithstanding the foregoing and any other provision to the contrary contained in this Agreement, (i) the subordination of Liens provided for in this Agreement shall not be effective on any date with respect to any part of the Collateral in which the Liens of Senior Agent and the Senior Lenders are invalid, unenforceable, void, avoidable, subordinated, disputed or not allowed as a result of any action taken by Senior Agent, or any failure by Senior Agent to take any action, with respect to any financing statement (including any amendment to or continuation thereof), mortgage, intellectual property filing or other perfection document, in which event Junior Agent and the Junior Lenders shall be entitled to receive and retain all Proceeds with respect to such Collateral to the extent the Liens of Junior Agent and the Junior Lenders are valid, enforceable, not void, not avoidable, not subordinated, not disputed and allowed with respect to such Collateral, and (ii) except with respect to Permitted Liens (as defined in the Original Senior Credit Agreement) and except as expressly provided in Section 2.e, Senior Agent and the Senior Lenders agree not to contractually subordinate, or otherwise contractually relinquish the benefits of, their Lien Indebtednessin any Collateral to the Lien, indebtedness or claim of any other creditor of the Borrowers or any Obligor without the prior written consent of Junior Agent and the Junior Lenders.
Appears in 1 contract
Samples: Intercreditor Agreement (Monotype Imaging Holdings Inc.)
Lien Subordination. Subordinated Lender does hereby subordinate any and all Liens, whether now existing or hereafter created and whether perfected or unperfected, in and to any assets securing the Subordinated Indebtedness all of which are, and shall at all times remain junior and subordinate to any Liens, whether now existing or hereafter created and whether perfected or unperfected, in favor of Senior Lender to secure any of the Senior Indebtedness. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, or perfection of any the Liens granted to First Lien Agent (the Senior Lender or First Lien Co-Agent Subordinated Lender, and notwithstanding any provisions of the Uniform Commercial Code of any state or any First Lien Lender) applicable law or Second Lien Agent (decision or any Second Lien Lender) in respect provisions of the Subordinated Instruments, and irrespective of whether the Senior Lender or the Subordinated Lender holds possession of all or any portion part of the Collateral, (ii) the order Senior Lender and the Subordinated Lender hereby agree that the Senior Lender shall have a first and prior Lien upon all Collateral, whether real or time personal and whether now owned or hereafter acquired, of filing ISI, Borrower, and all of their Subsidiaries. The Subordinated Lender hereby agrees that it will not contest the validity, perfection, priority or recordation enforceability of any document or instrument for perfecting the Senior Lender’s Liens in favor the Collateral. All proceeds of First Lien Agent (Collateral shall be first paid to the Senior Lender for application to the Senior Indebtedness until the Senior Indebtedness obligations are paid in full in cash and all commitments under the Senior Instruments are terminated. Any payments or First Lien Co-Agent Collateral received by the Subordinated Lender shall be subject to the provisions of Section 2.5 of this Agreement. Subordinated Lender agrees not to acquire, by subrogation, contract or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) any provision of the UCCotherwise, any Lien, security interest or other applicable lawright, title or interest in any of the First Lien Loan Documents assets of ISI or the Second Lien Loan Documentsany of its Subsidiaries (including, (ivbut not limited to, any which may arise with respect to taxes, assessments or other governmental charges) irrespective of whether which is or may be prior in right to, or pari passu with, the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien IndebtednessSenior Lender.
Appears in 1 contract
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, or perfection of any Liens granted to the First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or the Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of the First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or the Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) any provision of the UCC, UCC or any other applicable law, any of the First Lien Loan Documents or any of the Second Lien Loan Documents, (iv) irrespective of except to the extent set forth below in this Section 2.a, whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) except to the extent set forth below in this Section 2.a, any other circumstance whatsoever, each of the First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, Agent hereby agree that:
(1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of the Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the such Collateral to secure all or any portion of the First Lien Indebtedness (other than any Excluded First Lien Indebtedness, and),
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of the Second Lien Agent or any Second Lien Lender that secures all or any portion of the Excluded Second Lien Indebtedness shall in all respects be junior and subordinate to all Liens granted to the First Lien Agent, Agent and the First Lien Co-Lenders in such Collateral to secure all or any portion of the First Lien Indebtedness (including any Excluded First Lien Indebtedness),
(3) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of the First Lien Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness (other than any Excluded First Lien Indebtedness) shall in all respects be senior and prior to all Liens granted to the Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtedness,
(4) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of the First Lien Agent or any First Lien Lender that secures all or any portion of the Excluded First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to the Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Excluded Second Lien Indebtedness,
(5) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of the First Lien Agent or any First Lien Lender that secures all or any portion of the Excluded First Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to the Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtedness (other than any Excluded Second Lien Indebtedness), and
(6) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of the Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness (other than any Excluded Second Lien Indebtedness) shall in all respects be senior and prior to all Liens granted to the First Lien Agent and the First Lien Lenders in the Collateral to secure all or any portion of the Excluded First Lien Indebtedness. All Liens with respect to the Collateral securing any First Lien Indebtedness shall (to the extent provided above) be and remain senior in all respects and prior to all Liens with respect to the Collateral securing any Second Lien Indebtedness for all purposes, whether or not such Liens securing any First Lien Indebtedness are subordinated to any Lien securing any other obligation of any Obligor or any other person (but only to the extent that such subordination is permitted pursuant to the terms of the First Lien Credit Agreement and the Second Lien Credit Agreement, or as contemplated in Section 3.d). Subject to the immediately preceding sentence, but notwithstanding any other provision to the contrary contained in this Agreement: (i) the First Lien Agent and the First Lien Lenders agree not to contractually subordinate, or otherwise contractually assign the benefits of, their Lien in any Collateral to the Lien, indebtedness or claim of any other creditor of any Obligor without the prior written consent of the Second Lien Agent (provided that no such consent shall be required in connection with the assignment of such Lien in connection with a Refinancing of the First Lien Indebtedness in accordance with the provisions hereof); and (ii) the Second Lien Agent and the Second Lien Lenders agree not to contractually subordinate, or otherwise contractually assign the benefits of, their Lien in any Collateral to the Lien, indebtedness or claim of any other creditor of any Obligor without the prior written consent of the First Lien Agent (provided that no such consent shall be required in connection with the assignment of such Lien in connection with a Refinancing of the Second Lien Indebtedness in accordance with the provisions hereof). The subordination of Liens provided for in this Agreement shall not be effective from and after any date with respect to any part of the Collateral as to which: (i) the Liens of the First Lien Agent and the First Lien Lenders are finally determined by a non-appealable court order to be invalid, unenforceable, or void, in which event, notwithstanding the provisions of Sections 6 and 7, the Second Lien Agent and the Second Lien Lenders shall be entitled to receive and retain, from and after such date, all Proceeds with respect to such Collateral to the extent that the Liens of the Second Lien Agent and the Second Lien Lenders have not been finally determined by a non-appealable court order to be invalid, unenforceable, or void with respect to such Collateral; and (ii) the Liens of the Second Lien Agent and the Second Lien Lenders are finally determined by a non-appealable court order to be invalid, unenforceable, or void, in which event, notwithstanding the provisions of Sections 6 and 7, the First Lien Agent and the First Lien Lenders shall be entitled to receive and retain, from and after such date, all Proceeds with respect to such Collateral to the extent that the Liens of the First Lien Agent and the First Lien Lenders have not been finally determined by a non-appealable court order to be invalid, unenforceable, or void with respect to such Collateral. The parties hereto agree that the provisions of clause (i) of the immediately preceding sentence shall not apply (and the subordination shall be effective) with respect to any item of Collateral in the event that (x) the Second Lien Agent does not comply with its obligations under Section 2.h with respect to such item of Collateral or (y) a notice is delivered to the First Lien Agent in accordance with the second sentence of Section 2.h with respect to such Collateral less than 90 days before the date that an Insolvency Proceeding in respect of the Obligor that owns such item of Collateral is commenced and the Lien of the First Lien Agent as to such items of Collateral is avoided under Section 547 of the Bankruptcy Code.
Appears in 1 contract
Samples: Intercreditor Agreement (Oxford Resource Partners LP)
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, attachment or perfection of any Liens granted to First Junior Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all any Collateral or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens Senior Lien in favor respect of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) Collateral and notwithstanding any provision of the UCC, any other applicable lawlaw (including the Bankruptcy Code), any Loan Document, any alleged or actual defect or deficiency in any of the First Lien Loan Documents or the Second Lien Loan Documentsforegoing, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, any failure to attach or (vif required under any Loan Document) perfect any Lien created under any Loan Document or any other circumstance whatsoever, each of First Lien Agent and First Lien Co-AgentJunior Representative, on behalf of itself and the First Lien Lendersrespective Junior Secured Parties, and Second Lien Agent, on behalf in respect of itself and the Second Lien Lenders, such Collateral hereby agree agrees that:
(1a) any Senior Lien in respect of all such Collateral, regardless of how or any portion when acquired, whether by grant, possession, statute, operation of the Collateral now law, subrogation or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtednessotherwise, shall be and shall remain senior and prior to any Junior Lien in all respects respect of such Collateral (whether or not such Senior Lien is subordinated to any Lien securing any other obligation); and
(b) any Junior Lien in respect of such Collateral, regardless of how or when acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Senior Lien in respect of all or any portion such Collateral. For the avoidance of doubt, as between the ABL Secured Parties and the other Secured Parties, the Lien on the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of securing the First Lien Indebtedness ABL Obligations (other than Excess ABL Obligations) shall in all respects always be senior to the Lien on the Collateral securing the Term Obligations, Convertible Note Indenture Obligations and prior Excess ABL Obligations and (ii) the Lien on the Collateral securing the Excess ABL Obligations shall always be junior to all Liens granted to Second the Lien Agent on the Collateral securing the ABL Obligations (other than Excess ABL Obligations), the Term Obligations, and the Second Convertible Note Obligations. For the avoidance of doubt, (A) as between the Term Secured Parties and the other Secured Parties, the Lien Lenders in on the Collateral securing the Term Obligations shall be (i) senior to secure all or any portion of the Second Lien Indebtednesson the Collateral securing the Convertible Note Indenture Obligations and the Excess ABL Obligations and (ii) junior to the Lien on the Collateral securing the ABL Obligations (other than Excess ABL Obligations)and (B) as between the Convertible Note Secured Parties and the other Secured Parties, the Lien on the Collateral securing the Convertible Note Indenture Obligations shall be (i) junior to the Lien on the Collateral securing the ABL Obligations (other than the Excess ABL Obligations) and the Term Obligations and (ii) senior to the Lien on the Collateral securing the Excess ABL Obligations.
Appears in 1 contract
Samples: Intercreditor Agreement (SAExploration Holdings, Inc.)
Lien Subordination. (a) Notwithstanding (i) the date, time, method, manner or order respective dates of grant, attachment, attachment or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent the security interests of CR and the security interests of [A/R Lender], or any First Lien Lender) or Second Lien Agent (contrary provision of the UCC, or any Second Lien applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [A/R Lender) in respect ] or CR holds possession of all or any portion part of the Collateral, (i) all now existing and hereafter arising security interests of [A/R Lender] in any A/R Facility Senior Collateral shall at all times be senior to the security interests of CR in such A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CR in any CR Senior Collateral shall at all times be senior to the security interests of [A/R Lender] in such CR Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party; and
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c), that it shall not contest, challenge or time dispute the validity, attachment, perfection, priority or enforceability of filing the other Creditor’s security interest in the Common Collateral, or recordation the validity, priority or enforceability of the other Creditor’s Claim.
(c) Subject to Section 2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any document turnover of payment provisions hereof, or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) any provision of the UCC, any other applicable law, agreements among any of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtednessparties hereto.
Appears in 1 contract
Samples: Term Loan Agreement (Nevro Corp)
Lien Subordination. Notwithstanding (ia) The Subordinated Debt shall be unsecured and the dateCompany shall not grant any Liens to secure any of the Subordinated Debt. To the extent any Lien is ever granted, timethe Senior Debt, methodthe Securities Purchase Agreement and the other Transaction Documents and any and all other documents and instruments evidencing or creating the Senior Debt and all guaranties, manner mortgages, security agreements, pledges and other collateral guarantying or order securing the Senior Debt or any part thereof shall be senior to the Subordinated Debt and the Subordinated Documents irrespective of grantthe time of the execution, attachment, delivery or issuance of any thereof or the filing or recording for perfection of any Liens granted thereof or the filing of any financing statement or continuation statement relating to First Lien Agent (or First Lien Co-any thereof. Each Subordinated Creditor hereby agrees, upon request of the Collateral Agent or any First Lien LenderSenior Creditor at any time and from time to time, to execute such other documents or instruments as may be requested by the Collateral Agent or such Senior Creditor further to evidence of public record or otherwise the senior priority of the Senior Debt as contemplated hereby. Each Subordinated Creditor further agrees to maintain on its books and records such notations as the Senior Creditors may reasonably request to reflect the subordination contemplated hereby and to perfect or preserve the rights of the Collateral Agent and the Senior Creditors hereunder.
(b) or Second Lien Without limiting any of the rights of the Collateral Agent (or any Second Lien Lender) Senior Creditor under the Securities Purchase Agreement, the other Transaction Documents, as applicable, or applicable law, in respect the event that the Senior Creditors or the Collateral Agent release or discharge any guaranties of all the Senior Debt given by guarantors which have also guarantied any of the Subordinated Debt or any portion security interests in, or mortgages or liens upon, any collateral securing the Senior Debt and also securing any of the CollateralSubordinated Debt, such guarantors or (iias the case may be) the order such collateral shall thereupon be deemed to have been released from all such guaranties or time of filing security interests, mortgages or recordation of any document or instrument for perfecting the Liens liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) any provision of the UCC, any other applicable law, any of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtedness.Subordinated
Appears in 1 contract
Lien Subordination. (a) Notwithstanding (i) the date, time, method, manner or order respective dates of grant, attachment, attachment or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent the security interests of CRG Creditors and the security interests of [A/R Lender], or any First Lien Lender) or Second Lien Agent (contrary provision of the UCC, or any Second Lien applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [A/R Lender) in respect ] or any CRG Creditor holds possession of all or any portion part of the Collateral, (i) all now existing and hereafter arising security interests of [A/R Lender] in any A/R Facility Senior Collateral shall at all times be senior to the security interests of CRG Creditors in such A/R Facility Senior Collateral, and (ii) the order or time all now existing and hereafter arising security interests of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) CRG Creditors in any CRG Senior Collateral shall at all times be senior to any interests, including the security interests of [A/R Lender] in such CRG Senior Collateral. Notwithstanding the foregoing, (iii) [A/R Lender] agrees and acknowledges that it shall not receive, and [neither Borrower nor any provision of the UCCObligor shall grant][Borrower shall not grant], any other applicable law, any security interest to [A/R Lender] in the CRG Senior Collateral.
(b) Each of the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent [A/R Lender] and First Lien Co-CRG Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree thatCRG Creditors:
(1i) acknowledges and consents to (A) [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any Lien and all financing statements and other documents as reasonably deemed necessary by the other Creditor in respect order to perfect its security interest in its Common Collateral, and (C) [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party.
(ii) acknowledges, agrees and covenants, notwithstanding Section 2(c) but subject to Section 5 , that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of all the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any portion other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(ii) , the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtednessparties hereto.
Appears in 1 contract
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, attachment or perfection of any Liens granted to First the Second Lien Agent or the Second Priority Lenders on the Common Collateral or of any Liens granted to the Senior Agent or the First Priority Lenders on the Common Collateral, and notwithstanding any provision of the UCC or any other applicable law or the First Priority Documents or the Second Priority Documents, the Second Lien Agent and each of the applicable Second Priority Lenders hereby agrees that: (a) any Lien on the Common Collateral securing any First Priority Claims now or First Lien Co-hereafter held by or on behalf of the Senior Agent or any First Lien LenderPriority Lender(s) or Second any agent or trustee therefor shall be senior in all respects and prior to any Lien Agent (or any Second Lien Lender) in respect of all or any portion of on the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) any provision of the UCC, any other applicable law, Common Collateral securing any of the First Lien Loan Documents or the Second Lien Loan Documents, Priority Claims; and (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1b) any Lien in respect of all or any portion of on the Common Collateral now or hereafter held by or on behalf of the Second Lien Agent or any Second Lien Lender that secures all Priority Lenders or any portion agent or trustee therefor regardless of the Second Lien Indebtednesshow acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall in all respects be junior and subordinate in all respects to all Liens granted to First Lien Agent, First Lien Co-Agent and on the First Lien Lenders in the Common Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or securing any First Lien Lender that secures all or Priority Claims. All Liens on the Common Collateral securing any portion of the First Lien Indebtedness Priority Claims shall be and remain senior in all respects be senior and prior to all Liens granted on the Common Collateral securing any Second Priority Claims for all purposes, whether or not such Liens securing any First Priority Claims are subordinated to Second any Lien securing any other obligation of the Company, any other Grantor or any other Person; provided that, from and after the date of this Agreement the Senior Agent and First Priority Lenders will not, absent the Second Lien Lenders in the Collateral to secure all or any portion prior consent of the Second Priority Agent, voluntarily subordinate the First Priority Liens to any other Lien Indebtednesson Common Collateral other than Liens securing a DIP Financing provided by the Senior Agent, the First Priority Lenders, or any of them, it being understood among the Parties hereto that nothing contained herein shall obligate the Senior Agent or any First Priority Lender to prosecute any action as against the holder of any such Lien purporting to be senior to the First Priority Liens.
Appears in 1 contract
Samples: Intercreditor and Subordination Agreement (Body Central Corp)
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, attachment or perfection of any Liens granted to First Lien Agent (the Trustee or First Lien Co-Agent the Noteholders on the Common Collateral or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting Liens granted to Bank on the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) Common Collateral and notwithstanding any provision of the UCC, or any other applicable law, any of law or the First Lien Loan Noteholder Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Senior Lender Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agentthe Trustee, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien LendersNoteholders, hereby agree agrees that:
: (1a) any Lien in respect of all on the Common Collateral securing the First Priority Lien Obligations now or hereafter held by Bank shall be senior and prior to any portion of Lien on the Common Collateral securing the Second Priority Lien Obligations; and (b) any Lien on the Common Collateral now or hereafter held by the Trustee or on behalf the Noteholders regardless of Second Lien Agent how acquired, whether by grant, statute, operation of law, subrogation or any Second Lien Lender that secures all or any portion of the Second Lien Indebtednessotherwise, shall in all respects be junior and subordinate in all respects to all Liens granted to First Lien Agent, First Lien Co-Agent and on the Common Collateral securing the First Priority Lien Lenders Obligations. All Liens on the Common Collateral securing the First Priority Lien Obligations shall be and remain senior to all Liens on the Common Collateral securing the Second Priority Lien Obligations for all purposes. For the avoidance of doubt, in the Collateral to secure all event the Trustee or any portion Noteholder becomes a judgment lien creditor in respect of Common Collateral as a result of its enforcement of its rights as an unsecured creditor, such judgment lien shall be subordinated to the Liens securing First Priority Lien IndebtednessObligations on the same basis as the other Liens securing the Second Priority Lien Obligations are so subordinated to such First Priority Lien Obligations under this Agreement. The Trustee on behalf of itself and each Noteholder, and
(2) agrees not to take or cause to be taken any action, the purpose or effect of which is to make any Lien in respect of all any of the Common Collateral pari passu with or senior to, or to give the Trustee or any portion Noteholder any preference or priority relative to, the liens in favor of Bank in respect of the Collateral now or hereafter held Senior Lender Collateral. For the purposes of the foregoing allocation of priorities, any claim of a right of set-off shall be treated in all respects as a Lien, and no claimed right of set-off shall be asserted by or the Trustee on behalf of First Lien Agent, First Lien Co-Agent itself or any First Lien Lender that secures all Noteholder to defeat or any portion diminish the rights or priorities of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien IndebtednessBank provided for herein.
Appears in 1 contract
Samples: Intercreditor and Subordination Agreement (Electroglas Inc)
Lien Subordination. Notwithstanding Subordinated Creditor hereby unconditionally agrees that: (i) all Liens of Subordinated Creditor in any property of either Obligor shall be and hereby are subordinated to the Senior Liens, and (ii) other than as set forth in Section 2.7(b), Subordinated Creditor shall have no right to possession of any property of any Obligor or to take any Subordinated Collection Action, unless and until all the Senior Indebtedness shall have been fully paid and satisfied and the Security Agreement has been terminated. Notwithstanding any rights or remedies available to Subordinated Creditor under applicable law (including, without limitation, under the Bankruptcy Code) or under any Subordinated Debt Document, Subordinated Creditor shall not, without the prior written consent of Senior Creditor, be permitted to take any action to foreclose, repossess, marshal, control or exercise any remedies with respect to any property of either Obligor or take any other action which would interfere with or impair the Senior Liens or the rights of Senior Creditor against either Obligor’s property, until the payment in full of the Senior Indebtedness and the termination of the Security Agreement. Notwithstanding the date, time, method, manner or order of grant, attachment, attachment or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the CollateralSenior Liens, (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) and notwithstanding any provision of the UCC, UCC or any other applicable law, any of the First Lien Loan Documents law or the Second Lien Loan Documents, (iv) irrespective provisions of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed any Subordinated Debt Document or allowed, any other Senior Debt Document or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien LendersSubordinated Creditor, hereby agree that:
agrees that (1a) any Lien in respect of all or any portion of the Collateral Senior Liens now or hereafter held by or on behalf for the benefit of Second Lien Agent or Senior Creditor shall be senior in right, priority, operation, effect and all other respects to any Second Lien Lender that secures and all or any portion of the Second Lien Indebtedness, shall in all respects be junior Subordinated Creditor Liens and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2b) any Subordinated Creditor Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf for the benefit of First any Subordinated Creditor shall be junior and subordinate in right, priority, operation, effect and all other respects to any and all Senior Liens. The Senior Liens shall be and remain senior in right, priority, operation, effect and all other respects to any Subordinated Creditor Liens for all purposes, whether or not any Senior Liens are subordinated in any respect to any other Lien Agentsecuring any other obligation of either Obligor, First Lien Co-Agent any other grantor or any First other Person and regardless of whether the Lien Lender purported to be granted is found to be improperly granted, improperly perfected, a fraudulent conveyance or legally or otherwise deficient in any manner. Each of Senior Creditor and Subordinated Creditor, agrees that secures all it will not, and hereby waives any right to, directly or indirectly, contest or support any portion other Person in contesting, in any proceeding (including any Proceeding), the priority, validity or enforceability of any Senior Lien, or the validity or enforceability of the First Lien Indebtedness priorities, rights or obligations established by this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of Senior Creditor to enforce this Agreement. Each Obligor, by its execution of this Agreement, hereby acknowledges and agrees to the provisions of this paragraph, notwithstanding anything to the contrary in all respects be senior and prior any document to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtednesswhich such Obligor is a party.
Appears in 1 contract
Samples: Junior Subordination and Intercreditor Agreement (Ibf Vi Guaranteed Income Fund)
Lien Subordination. Notwithstanding (i) With respect to any Liens on the dateABL Priority Collateral securing the Secured Obligations, timesuch Liens cease to have senior “first priority” status pursuant to an ABL Intercreditor Agreement with respect to Liens on such ABL Priority Collateral securing Indebtedness outstanding under any Term Facility or any Junior Lien Indebtedness, methodin each case, manner with an aggregate principal amount outstanding in excess of the Threshold Amount, and (ii) with respect to the provisions in any ABL Intercreditor Agreement subordinating the Liens on the Collateral securing Indebtedness outstanding under any Term Facility or order any Junior Lien Indebtedness, in each case, with an aggregate principal amount outstanding in excess of grantthe Threshold Amount to the Liens on the Collateral securing the Secured Obligations, attachment(A) any Loan Party contests in writing the validity or enforceability thereof, (B) any court of competent jurisdiction in a final non-appealable order, determines such subordination provisions to be invalid or unenforceable, or perfection (C) such subordination provisions otherwise cease to be valid, binding and enforceable obligations of the parties to such ABL Intercreditor Agreement, then, and in every such event (other than an event with respect to Holdings or the Borrowers described in clause (f) or (g) of this Article) and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Lead Borrower, take any of the following actions, at the same or different times: (i) terminate the Commitments or any Additional Revolving Commitments and thereupon such Commitments or Additional Revolving Commitments shall terminate immediately, (ii) declare the Revolving Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Revolving Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any Liens granted kind, all of which are hereby waived by each Borrower and (iii) require that the US Borrower deposit in the US LC Collateral Account and the Canadian Borrower deposits in the Canadian LC Collateral Account, an additional amount in Cash as reasonably requested by the Issuing Banks (not to First Lien exceed 101% of the relevant face amount) of the then outstanding US LC Exposure (minus the amount then on deposit in the US LC Collateral Account) or Canadian LC Exposure (minus the amount then on deposit in the Canadian LC Collateral Account), as applicable; provided that upon the occurrence of an event with respect to Holdings or any Borrower described in clauses (f) or (g) of this Article, any such Commitments and/or Additional Revolving Commitments applicable to the US Borrower and to the extent such event is applicable to the Canadian Borrower, the Canadian Borrower shall automatically terminate and the principal of the Revolving Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers. Notwithstanding anything to the contrary herein or in any Loan Document, all rights and remedies hereunder and under any other Loan Document or at law or equity, including all remedies provided under the UCC or the PPSA, shall be exercised exclusively by the Administrative Agent for the benefit of the Secured Parties. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity, including all remedies provided under the UCC or the PPSA.
ARTICLE VIII THE ADMINISTRATIVE AGENT Each of the Lenders and the Issuing Banks hereby irrevocably appoints Barclays (or First Lien Co-any successor appointed pursuant hereto) as Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto. Any Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Loan Party or any subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them. The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law; it being understood that such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary power, except discretionary rights and powers that are expressly contemplated by the Loan Documents and which the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Section 9.02); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable laws, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Lead Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any First Lien Lenderof its Affiliates in any capacity. The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the relevant circumstances as provided in Section 9.02) or Second Lien in the absence of its own gross negligence or willful misconduct, as determined by the final and non-appealable judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Administrative Agent (shall not be deemed to have knowledge of the existence of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Lead Borrower or any Second Lien Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in respect or in connection with any Loan Document, (ii) the contents of all any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any covenant, agreement or other term or condition set forth in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any portion other agreement, instrument or document, (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral, (iivi) the order or time of filing or recordation satisfaction of any document condition set forth in Article IV or instrument for perfecting elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Liens in favor of First Lien Agent (or First Lien Co-Administrative Agent or (vii) any First Lien Lender) property, book or Second Lien Agent (record of any Loan Party or any Second Lien Lender) in Affiliate thereof. If any Collateral, (iii) any provision Lender acquires knowledge of the UCCexistence of a Default or Event of Default, it shall promptly notify the Administrative Agent and the other Lenders thereof in writing. Each Lender agrees that, except with the written consent of the Administrative Agent, it will not take any enforcement action hereunder or under any other Loan Document, accelerate the Obligations under any Loan Document, or exercise any right that it might otherwise have under applicable law or otherwise to credit bid at any foreclosure sale, UCC or PPSA sale, any sale under Section 363 of the Bankruptcy Code or other similar Dispositions of Collateral. Notwithstanding the foregoing, however, a Lender may take action to preserve or enforce its rights against a Loan Party where a deadline or limitation period is applicable lawthat would, absent such action, bar enforcement of the Obligations held by such Lender, including the filing of a proof of claim in a case under the Bankruptcy Code. Notwithstanding anything to the contrary contained herein or in any of the First Lien Loan Documents or the Second Lien other Loan Documents, (iv) irrespective of whether Holdings, the Liens securing Borrowers, the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Administrative Agent and First Lien Co-each Secured Party agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Loan Documents; it being understood and agreed that all powers, rights and remedies hereunder shall be exercised solely and exclusively by, the Administrative Agent, on behalf of itself the Secured Parties in accordance with the terms hereof and all powers, rights and remedies under the First Lien Lendersother Loan Documents shall be exercised solely and exclusively by, the Administrative Agent, and Second Lien (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, on behalf as agent for and representative of itself the Secured Parties, shall be entitled, for the purpose of bidding and making settlement or payment of the Second Lien Lenders, hereby agree that:
(1) any Lien in respect of purchase price for all or any portion of the Collateral now sold at any such sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or hereafter held any Lender may be the purchaser or licensor of any or all of such Collateral at any such Disposition. No holder of any Secured Hedging Obligation or Secured Banking Services Obligation in its respective capacity as such shall have any rights in connection with (i) the management or release of any Collateral or of the obligations of any Loan Party under this Agreement or (ii) any waiver, consent, modification or any amendment with respect to this Agreement or any other Loan Document. Each of the Lenders hereby irrevocably authorizes (and by or entering into a Hedge Agreement with respect to any Secured Hedging Obligation and/or by entering into documentation in connection with any Banking Services Obligation, each of the other Secured Parties hereby authorizes and shall be deemed to authorize) the Administrative Agent, on behalf of Second Lien Agent or all Secured Parties to take any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and following actions upon the First Lien Lenders in the Collateral to secure all or any portion instruction of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtedness.Required Lenders:
Appears in 1 contract
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting the or grant, attachment or perfection of any Liens in favor of First Lien Agent (or First Lien Co-Agent granted to any Second Priority Representative or any First Lien Lender) Second Priority Debt Parties on the Shared Collateral or Second Lien Agent of any Liens granted to any Senior Representative or any other Senior Secured Party on the Shared Collateral (or any Second Lien Lender) actual or alleged defect in any Collateral, (iiiof the foregoing) and notwithstanding any provision of the UCC, any other applicable law, any of the First Lien Loan Documents Second Priority Debt Document or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed any Senior Debt Document or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-AgentSecond Priority Representative, on behalf of itself and the First Lien Lenders, and each Second Lien Agent, on behalf of itself and the Priority Debt Party under its Second Lien LendersPriority Debt Facility, hereby agree that:
agrees that (1a) any Lien in respect of all on the Shared Collateral securing or purporting to secure any portion of the Collateral Senior Obligations now or hereafter held by or on behalf of Second Lien Agent any Senior Representative or any Second Lien Lender that secures all other Senior Secured Party or any portion other agent or trustee therefor, regardless of the Second Lien Indebtednesshow acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects be junior and subordinate prior to all Liens granted to First any Lien Agent, First Lien Co-Agent and on the First Lien Lenders in the Shared Collateral securing or purporting to secure all or any portion of the First Lien Indebtedness, and
Second Priority Debt Obligations and (2b) any Lien in respect of all on the Shared Collateral securing or purporting to secure any portion of the Collateral Second Priority Debt Obligations now or hereafter held by or on behalf of First Lien Agentany Second Priority Representative, First Lien Co-Agent any Second Priority Debt Parties or any First Lien Lender that secures all Second Priority Representative or any portion other agent or trustee therefor, regardless of the First Lien Indebtedness how acquired, whether by xxxxx, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Shared Collateral securing or purporting to secure any Senior Obligations. All Liens on the Shared Collateral securing or purporting to secure any Senior Obligations shall be and remain senior in all respects and prior to all Liens granted to Second Lien Agent and on the Second Lien Lenders in the Shared Collateral securing or purporting to secure any Second Priority Debt Obligations for all purposes, whether or not such Liens securing or purporting to secure any Senior Obligations are subordinated to any Lien securing any other obligation of any Obligor or any portion of the Second Lien Indebtednessother Person or otherwise subordinated, voided, avoided, invalidated or lapsed.
Appears in 1 contract
Samples: Indenture (DISH Network CORP)
Lien Subordination. (a) Notwithstanding (i) the date, time, methodmanner, manner method or order of grant, attachment, or perfection of any Liens granted to First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in respect of all or any portion of the Collateral, (ii) the order or time of filing or recordation of any document or instrument for perfecting or of grant, attachment or perfection of any Liens granted to, or on behalf of, any of the Liens in favor of First Lien Agent (or First Lien Co-Agent Collateral Agents or any First Lien Lender) or Second Lien Agent other Secured Party on the Collateral (or any Second Lien Lender) actual or alleged defect, or deficiency or failure to perfect, in any Collateral, (iiiof the foregoing) and notwithstanding any provision of the UCC, any other applicable law, any of the First Lien Loan Documents Secured Debt Document or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First (i) the Second Lien Collateral Agent and First each Second Lien Co-AgentRepresentative, on behalf of itself and the First Lien Lenders, and each Second Lien Agent, on behalf of itself and the Secured Party under its Second Lien LendersDebt Facility, hereby agree that:
agrees that (1A) any Lien in respect of all or any portion of on the Collateral securing any First Lien Priority Obligations now or hereafter held by or on behalf of the First Lien Collateral Agent, any other First Lien Secured Party or any other agent or trustee therefor, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects and prior to any Lien on the Collateral securing the Second Lien Agent or Obligations, (B) any Lien on the Collateral securing any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral Obligations now or hereafter held by or on behalf of First any Second Lien AgentSecured Party or any other agent or trustee therefor, First Lien Co-Agent regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in right, priority, operation, effect and all other respects to all Liens on the Collateral securing any First Lien Lender that secures all Priority Obligations, (C) any Lien on the Collateral securing any Excess First Lien Obligations now or any portion hereafter held by or on behalf of the First Lien Indebtedness Collateral Agent, any other First Lien Secured Party or any other agent or trustee therefor, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects and prior to any Lien on the Collateral securing the Excess Second Lien Obligations and (D) any Lien on the Collateral securing any Excess Second Lien Obligations now or hereafter held by or on behalf of any Second Lien Secured Party or any other agent or trustee therefor, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in right, priority, operation, effect and all other respects to all Liens on the Collateral securing any Excess First Lien Obligations, (ii) the First Lien Collateral Agent and each First Lien Representative, on behalf of itself and each First Lien Secured Party under its First Lien Debt Facility, hereby agrees that (A) any Lien on the Collateral securing any Second Lien Priority Obligations now or hereafter held by or on behalf of the Second Lien Collateral Agent, any other Second Lien Secured Party or any other agent or trustee therefor, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects and prior to any Lien on the Collateral securing the Excess First Lien Obligations and (B) any Lien on the Collateral securing any Excess First Lien Obligations now or hereafter held by or on behalf of any First Lien Secured Party or any other agent or trustee therefor, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in right, priority, operation, effect and all other respects to all Liens on the Collateral securing any Second Lien Priority Obligations and (iii) the Third Lien Collateral Agent and each Third Lien Representative, on behalf of itself and each Third Lien Secured Party under its Third Lien Debt Facility, hereby agrees that (A) any Lien on the Collateral securing First Lien Obligations now or hereafter held by or on behalf of the First Lien Collateral Agent, any other First Lien Secured Party or any other agent or trustee therefor and any Lien on the Collateral securing Second Lien Obligations now or hereafter held by or on behalf of the Second Lien Collateral Agent, any other Second Lien Secured Party or any other agent or trustee therefor, in each case, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects and prior to any Lien on the Collateral securing the Third Lien Obligations and (B) any Lien on the Collateral securing any Third Lien Obligations now or hereafter held by or on behalf of any Third Lien Secured Party or any other agent or trustee therefor, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in right, priority, operation, effect and all other respects to all Liens on the Collateral securing First Lien Obligations and to all Liens on the Collateral securing Second Lien Obligations.
(b) All (i) Liens on the Collateral securing any First Lien Priority Obligations shall be and remain senior in right, priority, operation, effect and all other respects and prior to all Liens granted to on the Collateral securing any Second Lien Agent and Obligations for all purposes, whether or not such Liens securing any First Lien Priority Obligations are subordinated in any respect to any Lien securing any other obligation of any Credit Party or any other Person or otherwise subordinated, voided, avoided, invalidated or lapsed, (ii) Liens on the Collateral securing any Second Lien Lenders Priority Obligations shall be and remain senior in right, priority, operation, effect and all other respects and prior to all Liens on the Collateral securing any Excess First Lien Obligations, whether or not such Liens securing any Second Lien Priority Obligations are subordinated in any respect to secure all any Lien securing any other obligation of any Credit Party or any portion of other Person or otherwise subordinated, voided, avoided, invalidated or lapsed, (iii) Liens on the Collateral securing any Excess First Lien Obligations shall be and remain senior in right, priority, operation, effect and all other respects and prior to all Liens on the Collateral securing any Excess Second Lien IndebtednessObligations for all purposes, whether or not such Liens securing any Excess First Lien Obligations are subordinated in any respect to any Lien securing any other obligation of any Credit Party or any other Person or otherwise subordinated, voided, avoided, invalidated or lapsed and (iv) Liens on the Collateral securing First Lien Obligations and Liens on the Collateral securing Second Lien Obligations shall be and remain senior in right, priority, operation, effect and all other respects and prior to all Liens on the Collateral securing any Third Lien Obligations for all purposes, whether or not such Liens securing any First Lien Obligations and/or any Second Lien Obligations are subordinated in any respect to any Lien securing any other obligation of any Credit Party or any other Person or otherwise subordinated, voided, avoided, invalidated or lapsed.
Appears in 1 contract
Lien Subordination. Notwithstanding (i) the date, time, method, manner or order of grant, attachment, attachment or perfection of any Liens granted to First Lien Agent (the ABL Representative or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) the other ABL Creditors in respect of all any Collateral or any portion of the Collateral, (ii) the order or time of filing or recordation of any document Liens granted to the Term Loan Representative or instrument for perfecting the Liens other Term Loan Creditors in favor respect of First Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) in any Collateral, (iii) Collateral and notwithstanding any provision of the UCC, any other applicable law, any Security Document, any alleged or actual defect or deficiency in any of the First Lien Loan Documents foregoing or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agentthe ABL Representative, on behalf of itself and the First Lien Lendersother ABL Creditors, and Second Lien Agentthe Term Loan Representative, on behalf of itself and the Second Lien Lendersother Term Loan Creditors, hereby agree that:
(1a) any Lien in respect of all or any portion of the ABL Priority Collateral now or hereafter held by or on behalf of Second Lien Agent the ABL Representative or any Second Lien Lender other ABL Creditor that secures all or any portion of the Second Lien IndebtednessABL Obligations (other than Excess ABL Obligations), regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall in all respects be junior and subordinate shall remain senior and prior to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders Term Loan Representative or any other Term Loan Creditor in respect of all or any portion of the ABL Priority Collateral to secure all or any portion of the First Lien Indebtedness, andTerm Loan Obligations;
(2b) any Lien in respect of all or any portion of the ABL Priority Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent the Term Loan Representative or any First Lien Lender other Term Loan Creditor that secures all or any portion of the First Lien Indebtedness Term Loan Obligations, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall in all respects be senior and prior shall remain junior and subordinate to all Liens granted to Second Lien Agent and the Second Lien Lenders ABL Representative or any other ABL Creditor in respect of all or any portion of the ABL Priority Collateral to secure all or any portion of the Second ABL Obligations (other than Excess ABL Obligations);
(c) any Lien Indebtednessin respect of all or any portion of the ABL Priority Collateral now or hereafter held by or on behalf of the Term Loan Representative or any other Term Loan Creditor that secures all or any portion of the Term Loan Obligations (other than Excess Term Loan Obligations), regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be and shall remain senior and prior to all Liens granted to the ABL Representative or any other ABL Creditor in respect of all or any portion of the ABL Priority Collateral to secure all or any portion of the Excess ABL Obligations;
(d) any Lien in respect of all or any portion of the ABL Priority Collateral now or hereafter held by or on behalf of the ABL Representative or any other ABL Creditor that secures all or any portion of the Excess ABL Obligations, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be and shall remain junior and subordinate to all Liens granted to the Term Loan Representative or any other Term Loan Creditor in respect of all or any portion of the ABL Priority Collateral to secure all or any portion of the Term Loan Obligations (other than Excess Term Loan Obligations);
(e) any Lien in respect of all or any portion of the ABL Priority Collateral now or hereafter held by or on behalf of the ABL Representative or any other ABL Creditor that secures all or any portion of the Excess ABL Obligations, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be and shall remain senior and prior to all Liens granted to the Term Loan Representative or any other Term Loan Creditor in respect of all or any portion of the ABL Priority Collateral to secure all or any portion of the Excess Term Loan Obligations;
(f) any Lien in respect of all or any portion of the ABL Priority Collateral now or hereafter held by or on behalf of the Term Loan Representative or any other Term Loan Creditor that secures all or any portion of the Excess Term Loan Obligations, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be and shall remain junior and subordinate to all Liens granted to the ABL Representative or any other ABL Creditor in respect of all or any portion of the ABL Priority Collateral to secure all or any portion of the Excess ABL Obligations;
(g) any Lien in respect of all or any portion of the Term Loan Priority Collateral now or hereafter held by or on behalf of the Term Loan Representative or any other Term Loan Creditor that secures all or any portion of the Term Loan Obligations (other than Excess Term Loan Obligations), regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be and shall remain senior and prior to all Liens granted to the ABL Representative or any other ABL Creditor in respect of all or any portion of the Term Loan Priority Collateral to secure all or any portion of the ABL Obligations;
(h) any Lien in respect of all or any portion of the Term Loan Priority Collateral now or hereafter held by or on behalf of the ABL Representative or any other ABL Creditor that secures all or any portion of the ABL Obligations, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be and shall remain junior and subordinate to all Liens granted to the Term Loan Representative or any other Term Loan Creditor in respect of all or any portion of the Term Loan Priority Collateral to secure all or any portion of the Term Loan Obligations (other than Excess Term Loan Obligations);
(i) any Lien in respect of all or any portion of the Term Loan Priority Collateral now or hereafter held by or on behalf of the ABL Representative or any other ABL Creditor that secures all or any portion of the ABL Obligations (other than Excess ABL Obligations), regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be and shall remain senior and prior to all Liens granted to the Term Loan Representative or any other Term Loan Creditor in respect of all or any portion of the Term Loan Priority Collateral to secure all or any portion of the Excess Term Loan Obligations;
(j) any Lien in respect of all or any portion of the Term Loan Priority Collateral now or hereafter held by or on behalf of the Term Loan Representative or any other Term Loan Creditor that secures all or any portion of the Excess Term Loan Obligations, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be and shall remain junior and subordinate to all Liens granted to the ABL Representative or any other ABL Creditor in respect of all or any portion of the Term Loan Priority Collateral to secure all or any portion of the ABL Obligations (other than Excess ABL Obligations);
(k) any Lien in respect of all or any portion of the Term Loan Priority Collateral now or hereafter held by or on behalf of the Term Loan Representative or any other Term Loan Creditor that secures all or any portion of the Excess Term Loan Obligations, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be and shall remain senior and prior to all Liens granted to the ABL Representative or any other ABL Creditor in respect of all or any portion of the Term Loan Priority Collateral to secure all or any portion of the Excess ABL Obligations; and
(l) any Lien in respect of all or any portion of the Term Loan Priority Collateral now or hereafter held by or on behalf of the ABL Representative or any other ABL Creditor that secures all or any portion of the Excess ABL Obligations, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be and shall remain junior and subordinate to all Liens granted to the Term Loan Representative or any other Term Loan Creditor in respect of all or any portion of the Term Loan Priority Collateral to secure all or any portion of the Excess Term Loan Obligations.
Appears in 1 contract
Samples: Intercreditor Agreement
Lien Subordination. Notwithstanding (i) The Liens on the date, time, method, manner or order of grant, attachment, or perfection of Collateral securing the First Priority Secured Obligations ceasing to have senior “first priority” status with respect to Liens on the Collateral securing any Liens granted to First Junior Lien Agent (or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) Indebtedness with an aggregate principal amount outstanding in respect of all or any portion excess of the CollateralThreshold Amount pursuant to any applicable Acceptable Intercreditor Agreement, and (ii) with respect to the order provisions in any Acceptable Intercreditor Agreement subordinating the Liens on the Collateral securing any Junior Lien Indebtedness with an aggregate principal amount outstanding in excess of the Threshold Amount to the Liens on the Collateral securing the First Priority Secured Obligations, (A) any Loan Party contests in writing the validity or enforceability thereof, (B) any court of competent jurisdiction in a final non-appealable order, determines such subordination provisions to be invalid or unenforceable, or (C) such subordination provisions otherwise cease to be valid, binding and enforceable obligations of the parties to such Acceptable Intercreditor Agreement, then, and in every such event (other than an event with respect to Holdings or the Borrower described in clause (f) or (g) of this Article) and at any time thereafter during the continuance of filing such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take any of the following actions, at the same or recordation different times: (i) terminate any Additional Commitments and thereupon such Additional Commitments shall terminate immediately and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any document kind, all of which are hereby waived by the Borrower; provided that upon the occurrence of an event with respect to Holdings or instrument for perfecting the Liens Borrower described in favor of First Lien Agent clauses (or First Lien Co-Agent or any First Lien Lenderf) or Second Lien Agent (g) of this Article, any such Commitments and/or Additional Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any Second Lien Lender) kind, all of which are hereby waived by the Borrower. Notwithstanding anything to the contrary herein or in any CollateralLoan Document, (iii) all rights and remedies hereunder and under any provision of other Loan Document or at law or equity, including all remedies provided under the UCC, any other applicable law, any shall be exercised exclusively by the Administrative Agent for the benefit of the First Lien Secured Parties. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity, including all remedies provided under the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Agent, on behalf of itself and the First Lien Lenders, and Second Lien Agent, on behalf of itself and the Second Lien Lenders, hereby agree that:
(1) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien IndebtednessUCC.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Hillman Solutions Corp.)
Lien Subordination. Notwithstanding (ia) The Subordinated Debt shall be unsecured and the dateCompany shall not grant any Liens to secure any of the Subordinated Debt. To the extent any Lien is ever granted, timethe Senior Debt, methodthe Securities Purchase Agreement and the other Transaction Documents and any and all other documents and instruments evidencing or creating the Senior Debt and all guaranties, manner mortgages, security agreements, pledges and other collateral guarantying or order securing the Senior Debt or any part thereof shall be senior to the Subordinated Debt and the Subordinated Documents irrespective of grantthe time of the execution, attachment, delivery or issuance of any thereof or the filing or recording for perfection of any Liens granted thereof or the filing of any financing statement or continuation statement relating to First Lien Agent (or First Lien Co-any thereof. Each Subordinated Creditor hereby agrees, upon request of the Collateral Agent or any First Lien LenderSenior Creditor at any time and from time to time, to execute such other documents or instruments as may be requested by the Collateral Agent or such Senior Creditor further to evidence of public record or otherwise the senior priority of the Senior Debt as contemplated hereby. Each Subordinated Creditor further agrees to maintain on its books and records such notations as the Senior Creditors may reasonably request to reflect the subordination contemplated hereby and to perfect or preserve the rights of the Collateral Agent and the Senior Creditors hereunder.
(b) or Second Lien Without limiting any of the rights of the Collateral Agent (or any Second Lien Lender) Senior Creditor under the Securities Purchase Agreement, the other Transaction Documents, as applicable, or applicable law, in respect the event that the Senior Creditors or the Collateral Agent release or discharge any guaranties of all the Senior Debt given by guarantors which have also guarantied any of the Subordinated Debt or any portion security interests in, or mortgages or liens upon, any collateral securing the Senior Debt and also securing any of the CollateralSubordinated Debt, such guarantors or (iias the case may be) the order such collateral shall thereupon be deemed to have been released from all such guaranties or time of filing security interests, mortgages or recordation of any document or instrument for perfecting the Liens liens in favor of First Lien the applicable Subordinated Creditor. Each Subordinated Creditor agrees that, within ten (10) days following the Collateral Agent’s written request therefor, such Subordinated Creditor will execute, deliver and file any and all such termination statements, mortgage discharges, lien releases and other agreements and instruments as the Collateral Agent (reasonably deems necessary or First Lien Co-Agent or any First Lien Lender) or Second Lien Agent (or any Second Lien Lender) appropriate in any Collateral, (iii) any provision of order to give effect to the UCC, any other applicable law, any of preceding sentence. Each Subordinated Creditor hereby irrevocably appoints the First Lien Loan Documents or the Second Lien Loan Documents, (iv) irrespective of whether the Liens securing the First Lien Loan Documents are valid, perfected, enforceable, void, avoidable, subordinated, disputed or allowed, or (v) any other circumstance whatsoever, each of First Lien Agent and First Lien Co-Collateral Agent, on behalf of itself and the First Lien Lendersits successors and assigns, and Second Lien Agenttheir respective officers, on behalf with full power of itself substitution, the true and lawful attorney(s) of such Subordinated Creditor for the Second Lien Lenderspurpose of effecting any such executions, hereby agree that:
deliveries and filings if and to the extent that such Subordinated Creditor shall have failed to perform such obligations pursuant to the foregoing provisions of this Section 8(b) within such ten (110) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of Second Lien Agent or any Second Lien Lender that secures all or any portion of the Second Lien Indebtedness, shall in all respects be junior and subordinate to all Liens granted to First Lien Agent, First Lien Co-Agent and the First Lien Lenders in the Collateral to secure all or any portion of the First Lien Indebtedness, and
(2) any Lien in respect of all or any portion of the Collateral now or hereafter held by or on behalf of First Lien Agent, First Lien Co-Agent or any First Lien Lender that secures all or any portion of the First Lien Indebtedness shall in all respects be senior and prior to all Liens granted to Second Lien Agent and the Second Lien Lenders in the Collateral to secure all or any portion of the Second Lien Indebtednessday period.
Appears in 1 contract
