Common use of Priorities Regarding Collateral Clause in Contracts

Priorities Regarding Collateral. Any and every lien and security interest in the Collateral in favor of or held for the benefit of Senior Creditor, to the extent perfected and enforceable, has and shall have priority over any lien or security interest that Subordinate Creditor now has or may hereafter acquire in the Collateral, to the extent perfected and enforceable by Subordinate Creditor, notwithstanding any statement or provision contained in the Subordinate Loan Documents or otherwise to the contrary and irrespective of the time or order of filing or recording of financing statements, deeds of trust, mortgages or other notices of security interests, liens or assignments granted pursuant thereto, and irrespective of anything contained in any filing or agreement to which any party hereto or its respective successors and assigns may now or hereafter be a party, and irrespective of the ordinary rules for determining priorities under the UCC or under any other law governing the relative priorities of secured creditors. At any time during which all or any part of the Senior Debt remains outstanding, and whether or not the same is then due and payable, the Proceeds of any sale, disposition or other realization by Senior Creditor or other party hereto (or any agent therefor) upon all or any part of the Collateral shall be applied in the following order of priorities irrespective of the application of any rule of law or the defect or impairment of any Senior Loan Document, Subordinate Loan Document or security interest, lien or assignment thereunder: first, to the payment of all costs and expenses of Senior Creditor (including, without limitation, the reasonable fees and expenses of legal counsel and other agents) incurred in connection with the collection of such Proceeds or the protection of the rights and interests of Senior Creditor therein;

Priorities Regarding Collateral. Any Until the Senior Indebtedness has been finally and irrevocably paid in full and the commitments of Senior Creditor under the Loan Agreement shall have terminated as provided herein, any and every lien and security interest in the Collateral in favor of or held for the benefit of the Senior Creditor, to the extent perfected and enforceable, Creditor has and shall have priority over any lien or security interest that Subordinate Subordinated Creditor now has might have or may hereafter acquire in the Collateral, to the extent perfected and enforceable by Subordinate Creditor, Collateral notwithstanding any statement or provision contained in the Subordinate Loan Subordinated Documents or otherwise to the contrary and irrespective of the time or order of filing or recording of financing statements, deeds of trust, mortgages or other notices of security interests, liens or assignments granted pursuant thereto, and irrespective of anything contained in any filing or agreement to which any party hereto or its respective successors and assigns may now or hereafter be a party, and irrespective of the ordinary rules for determining priorities under the UCC Uniform Commercial Code or under any other law governing the relative priorities of secured creditors. At Any lien or security interest of Subordinated Creditor in the Collateral and any time during which and all rights of Subordinated Creditor to the Collateral are and shall be inferior and subordinate to the rights of Senior Creditor thereto. Until the Senior Indebtedness has been finally and irrevocably paid in full and the commitments of Senior Creditor under the Loan Agreement shall have terminated as provided herein, Subordinated Creditor shall not make or permit any assignment, transfer, pledge or disposition of all or any part of the Senior Debt remains outstanding, and whether or not the same is then due and payable, the Proceeds of any sale, disposition or other realization by Senior Creditor or other party hereto Subordinated Indebtedness (or any agent therefor) upon all collateral or any part of other security for the Collateral shall be applied in the following order of priorities irrespective of the application of any rule of law or the defect or impairment of any Senior Loan Document, Subordinate Loan Document or security interest, lien or assignment thereunder: first, to the payment of all costs and expenses of Senior Creditor (including, without limitation, the reasonable fees and expenses of legal counsel and other agents) incurred in connection with the collection of such Proceeds or the protection of the rights and interests of Senior Creditor therein;Subordinated Indebtedness).

Priorities Regarding Collateral. Any and every lien and security interest in the Collateral in favor of or held for the benefit of Senior Creditor, to the extent perfected and enforceable, Creditor has and shall have priority over any lien or security interest that Subordinate Creditor now has or may hereafter acquire in the Collateral, to the extent perfected and enforceable by Subordinate Creditor, Collateral notwithstanding any statement or provision contained in the Subordinate Loan Documents or otherwise to the contrary and irrespective of the time or order of filing or recording of financing statements, deeds of trust, mortgages or other notices of security interests, liens or assignments granted pursuant thereto, and irrespective of anything contained in any filing or agreement to which any party part hereto or its respective successors and assigns may now or hereafter be a party, and irrespective of the ordinary rules for determining priorities under the UCC or under any other law governing the relative priorities of secured creditors. In furtherance of this Agreement, Subordinate Creditor hereby agrees to execute, acknowledge and deliver to Senior Creditor such additional documents or instruments as may be requested by Senior Creditor to confirm, evidence, or evidence of record, the terms and conditions of this Agreement. At any time during which all or any part of the Senior Debt remains outstanding, and whether or not the same is then due and payable, the Proceeds of any sale, disposition or other realization by Senior Creditor or other party hereto (or any agent therefor) upon all or any part of the Collateral shall be applied in the following order of priorities irrespective of the application of any rule of law or the defect or impairment of any Senior Loan Document, Subordinate Loan Document or security interest, lien or assignment thereunder: first, to the payment of interest and all costs and expenses of Senior Creditor (including, without limitation, the reasonable fees and expenses of legal counsel and other agents) incurred in connection with the collection of such Proceeds or the protection of the rights and interests of Senior Creditor therein;; second, to the payment in full in cash of all Senior Debt in such order as Senior Creditor shall determine in its sole discretion; third, to the payment of all interest and costs and expenses of Subordinate Creditor (including, without limitation, the reasonable fees and expenses of legal counsel and other agents) incurred in connection with the collection of such Proceeds or the protection of the rights and interests of Subordinate Creditor therein; fourth, to the payment in full of all Subordinated Debt in such order as Subordinate Creditor shall determine in its sole discretion; and finally, to the payment of any surplus then remaining to the owner of the Collateral or its successors or assigns or as a court of competent jurisdiction may direct. In the event any party to this Agreement receives Proceeds of the Collateral to which it is not entitled under this Section 9, or in the case of the Senior Creditor, in excess of the amount required to satisfy all of the obligations of Borrower to Senior Creditor in full, such party shall be deemed to hold all of such Proceeds in trust for the benefit of the party entitled thereto under this Section 9 for application as set forth above. Subordinate Creditor shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which proceedings are pending, or a certificate of the liquidating trustee or other person making any distribution to Subordinate Creditor, for the purpose of ascertaining the persons entitled to participate in such distribution, the Senior Creditor and the holders of other debt of Borrower, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Agreement. Subordinate Creditor hereby consents to the collection, sale or other disposition of the Collateral by the Senior Creditor free of any security interest, lien, claim, attachment or right of the Subordinate Creditor or, if Senior Creditor requests, by Borrower or its successor, including a trustee in bankruptcy, provided that the proceeds shall first be used to repay the Senior Debt in full in cash, and then to repay the Subordinated Debt and provided further, that the respective security interests of the Senior Creditor and Subordinate Creditor shall continue in the proceeds of any such sale or in any replacement collateral, which proceeds shall be distributed in accordance with the provisions of this Agreement. Subordinate Creditor agrees to take such action as Senior Creditor may request to facilitate such collection, sale or disposition, including, without limitation, the release of its lien or security interest and the termination of financing statements, attachments and the like with respect to the Collateral. Subordinate Creditor may condition the execution and delivery, or the effectiveness, of any proposed release of a lien or security interest with respect to the Collateral upon the actual disposition of the Collateral, collateral agency arrangements (whether pursuant to this Section 9 or otherwise) to ensure the continuity of any lien or security interest of Subordinate Creditor in the Proceeds from the disposition of the Collateral, and/or other conditions reasonably requested to prevent a loss of such lien or security interest. Subordinate Creditor hereby consents to any and all dispositions of the Collateral now or hereafter made by Senior Creditor upon Borrower's default or demand by the Senior Creditor as to any Senior Debt (including without limitation the compromise of any accounts or claims of Borrower). Notwithstanding anything to the contrary contained in this Agreement or in the Senior Loan Documents or the Subordinate Loan Documents, Senior Creditor and Subordinate Creditor agree that in the event Borrower requests permission to sell, transfer or dispose of any Collateral and Senior Creditor approves such a request, the Subordinate Creditor will consent to the sale of such Collateral, release any lien or security interest held by it therein, and terminate any financing statements, attachments and the like provided that the proceeds of such Collateral are used to pay Senior Debt and that, following the full, final and indefeasible payment in cash of the Senior Debt, any excess proceeds are used to pay Subordinated Debt. Senior Creditor shall use reasonable efforts to provide Subordinate Creditor with notice of its intent to take any actions described in this paragraph and an opportunity to discuss such proposed actions, but the failure for any reason whatsoever of Senior Creditor to so provide shall not affect the rights, duties and obligations of Senior Creditor or Subordinate Creditor under, or be deemed to be a breach or default under this Agreement, nor shall such failure give Subordinate Creditor the right to challenge such action, or the distribution of proceeds thereof, for any reason whatsoever.

Priorities Regarding Collateral. Any and every lien Lien and security interest in the Collateral (whether now or hereafter existing) in favor of or held for the benefit of Senior Creditor, to the extent perfected and enforceable, Secured Creditor has and shall have priority over any lien Lien or security interest that Subordinate Second Lien Creditor now has or may hereafter acquire in the Collateral, to the extent perfected and enforceable by Subordinate Creditor, Collateral notwithstanding any statement or provision contained in the Subordinate Second Lien Loan Documents or otherwise to the contrary contrary, and irrespective of whether the Senior Lender has a perfected security interest in the Collateral or not, and irrespective of the time or order of obtaining a judgment or filing or recording of financing statements, deeds of trust, mortgages or other notices of security interests, liens Liens or assignments granted pursuant thereto, and irrespective of anything contained in any filing or agreement to which any party hereto or its respective successors and assigns may now or hereafter be a party, and irrespective of the ordinary rules for determining priorities under the UCC or under any other law governing the relative priorities of secured and lien creditors. At Second Lien Creditor shall be entitled to rely upon any time final, non-appealable order or decree made by any court of competent jurisdiction in which proceedings are pending, or a certificate of the liquidating trustee or other person making any distribution to Second Lien Creditor, for the purpose of ascertaining the persons entitled to participate in such distribution, the Senior Secured Creditor and the holders of other debt of Borrowers, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Agreement; provided, however, that to give effect to this provision the Senior Secured Creditor shall have filed all financing statements in the manner and at the locations required to perfect its security interests in the Collateral prior to the close of business, five (5) business days immediately following the Closing Date and shall have promptly notified the Collateral Agent to that effect. Notwithstanding anything contained in this Section 9 or elsewhere in this Agreement, during which all the term of this Agreement: (a) in no event shall Second Lien Creditor seek to attach, garnish, levy or execute upon or otherwise seek to enforce any part Lien upon assets of any Loan Party, and Second Lien Creditor shall be barred from taking any such enforcement action with respect to any of the Collateral or Proceeds; and (b) in no event shall Second Lien Creditor seek or take a Lien on any assets of any of the Loan Parties unless Senior Secured Creditor also has a Lien on such assets that is superior to any Lien that Second Lien Creditor has covering such assets and is made subject to the terms of this Agreement. Should any such Liens exist, either now or in the future, by this document they shall be deemed to be fully subordinated to the Liens of the Senior Secured Creditor pursuant to the terms hereof and any funds received by the Second Lien Creditor with respect to such assets shall be held in trust for the benefit of the Senior Secured Creditor. Senior Secured Creditor agrees that, upon payment in full of the Senior Secured Debt remains outstanding, and whether or not upon termination of the same is then due security interests and payableLiens securing the Senior Secured Debt, the Proceeds of any sale, disposition Senior Secured Creditor shall deliver all Collateral in its possession or under its control to Second Lien Creditor. Nothing in this Section 9 or elsewhere in this Agreement is intended (and shall not be construed) to permit a court or other realization by Senior authority to disregard or modify in its discretion payment or Lien priorities set forth in this Agreement, but rather is intended simply to indicate that Second Lien Creditor or other party hereto (or any agent therefor) upon all or any part may rely on the interpretation of a court of competent jurisdiction regarding interpretation of this Agreement and the Collateral shall be applied appropriate payment priorities in the following order of priorities irrespective of the application of any rule of law or the defect or impairment of any Senior Loan Document, Subordinate Loan Document or security interest, lien or assignment thereunder: first, to the payment of all costs and expenses of Senior Creditor (including, without limitation, the reasonable fees and expenses of legal counsel and other agents) incurred in connection accordance with the collection of such Proceeds or the protection of the rights and interests of Senior Creditor therein;this Agreement.