Common use of Intercreditor Terms Clause in Contracts

Intercreditor Terms. The following provisions are solely for the purpose of defining the relative rights of subordinated Lender, on the one hand, and the senior creditors under the Credit Facilities permitted under the Loan Agreement (the “Senior Lenders”), on the other hand, and shall not be deemed to create any rights or priorities in favor of any other Person, including, without limitation, any Loan Party. The failure of any Loan Party to make any payment to any subordinated Lender due to the operation of these provisions shall not be construed as prohibiting the occurrence of a Default under the Loan Agreement. a. Credit Facility (not to exceed the maximum permitted pursuant to Section 5.3(b) of the Loan Agreement) shall have a first priority perfected security interest in the collateral described above and the liens securing the Credit Facility will be senior to the liens securing the Loan. No secured party shall contest the priority, validity or enforceability of any lien held by or on behalf of any other secured party. b. Loans shall be subordinate to prior payment in full of any Credit Facility and shall be subordinate to the Credit Facility in liquidation or dissolution. c. 180 day standstill on Loan payments upon payment default or right to acceleration under Credit Facility (the “Standstill Period”). d. Lender will not seek to or exercise remedies in respect of the collateral described above until after the end of the Standstill Period and in no event if the collateral agent for the Credit Agreement is diligently pursuing remedies with respect to the collateral. Lender shall otherwise have all rights and remedies as an unsecured creditor that is subordinate to the Credit Facilities. e. The collateral agent for the Credit Facility shall have the right to exercise all remedies in respect of the collateral and Lender shall not object to or hinder remedies being exercised by the collateral agent for the Credit Agreement. f. Lender shall not receive collateral or any proceeds of collateral in violation of the priorities described above. g. Any payments made to Lender in violation of subordination and collateral priority provisions described above shall be paid over to the lenders under the Credit Facility and no subrogation rights will be available to the Lender until the Credit Facility is paid in full. h. Customary notice provisions among Borrower, Lender and lenders under the Credit Facility. i. Following an event of default of the Credit Facility, Lender shall have the right to buyout the Credit Facility under Section 5.3(b) at any time after the earlier of (A) the end of the Standstill Period and (B) acceleration of the Credit Facility, provided that the buyout right in (B) shall expire 90 days following such acceleration event. j. The intercreditor agreement shall otherwise be in form and substance reasonably satisfactory to Lender, the Senior Lenders and Borrower. LIMITED GUARANTEE, dated as of [•], 2011 (this “Limited Guarantee”), by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as guarantor (the “Guarantor”) in favor of GSI Commerce, Inc., a Delaware corporation (the “Guaranteed Party”). The Guarantor hereby guarantees to the Guaranteed Party the payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the principal of and interest (including any interest, fees, costs or charges that would accrue but for the provisions of the Title 11 of the United States Code after any bankruptcy or insolvency petition under Title 11 of the United States Code) on the loan under the Loan Agreement, dated the date hereof (the “Loan Agreement”), between NRG Commerce, LLC, as borrower (the “Borrower”), the guarantors listed on Schedule I hereto (the “Loan Guarantors”) and the Guaranteed Party, as lender, in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations); provided that in no event shall the Guarantor be obligated to pay an amount in excess of $30 million on account of its guarantee hereunder (the “Cap”), it being understood that the guarantee of the Guaranteed Obligations under this Limited Guarantee may not be enforced against the Guarantor without giving effect to the Cap. The Guarantor acknowledges and agrees that its guarantee obligations hereunder are irrevocable, absolute and continuing obligations. This Limited Guarantee may not be revoked or terminated and shall remain in full force and effect and shall be binding on the Guarantor, its successors and assigns until the Guaranteed Obligations have been paid in full. The guarantee obligations of the Guarantor hereunder shall constitute a guaranty of collection and not a guaranty of payment. In order to enforce the obligations of the Guarantor hereunder, the Guaranteed Party or any other person shall be required to have exercised due diligence in its pursuit of remedies against the Borrower and the Loan Guarantors for all or any portion of the Guaranteed Obligations and against any collateral pledged to secure the Guaranteed Obligations or other secured interest thereon. The parties hereto agree that, should a judgment be rendered by a court of competent jurisdiction or an arbitration panel against the Borrower and the Loan Guarantors in respect of any Guaranteed Obligation, and such judgment remains unsatisfied for thirty (30) days, the party seeking to enforce against the Borrower or the Loan Guarantors shall be entitled to enforce such Guaranteed Obligation against the Guarantor as provided herein. In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of the Guarantor hereunder would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability hereunder, then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by the Guarantor, the Guaranteed Party or any other person, be automatically limited and reduced to the highest amount that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding. The Guarantor may not assign or delegate its rights, interests or obligations hereunder to any other person (except by operation of law) without the prior written consent of the Guaranteed Party. THIS LIMITED GUARANTEE SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.

Intercreditor Terms. 13.1 As between the Lenders, any distribution under paragraph 10.4 shall be made proportionately based upon the remaining principal amount (plus accrued and unpaid interest) to each as to the total amount then owed to the Lenders as a whole. The following provisions are solely for the purpose of defining the relative rights of subordinated Lender, on each Lender hereunder are pari passu to the one hand, and the senior creditors under the Credit Facilities permitted under the Loan Agreement (the “Senior Lenders”), on rights of the other handLenders hereunder. Any recovery hereunder shall be shared ratably among the Lenders according to the then remaining principal amount owed to each (plus accrued and unpaid interest) as to the total amount then owed to the Lenders as a whole. 13.2 If an Event of Default occurs and any Lender receives payment from a Debtor, the other parties hereto shall be immediately notified and such payment shall be shared with all of the other Secured Parties pursuant to Section 13.1 above. Each Lender agrees not be deemed to create commence any rights action or priorities proceeding concerning the Obligations or the Collateral without providing at least one business day’s notice to all Lenders. Notwithstanding anything to the contrary contained in any Transaction Document, this Agreement or any document executed in connection with the Obligations and irrespective of: (i) the time, order or method of attachment or perfection of the security interests created in favor of the Lenders, (ii) the time or order of filing or recording of financing statements or other documents filed or recorded to perfect security interests in any Collateral; (iii) anything contained in any filing or agreement to which any Lender now or hereafter may be a party; and (iv) the rules for determining perfection or priority under the Uniform Commercial Code or any other Personlaw governing the relative priorities of secured creditors, including, without limitation, any Loan Party. The failure of any Loan Party to make any payment to any subordinated each Lender due to the operation of these provisions shall not be construed as prohibiting the occurrence of a Default under the Loan Agreement. a. Credit Facility acknowledges that (not to exceed the maximum permitted pursuant to Section 5.3(bx) of the Loan Agreement) shall all other Lenders have a first priority perfected valid security interest in the collateral described above Collateral and (y) the liens securing security interests of the Credit Facility will be senior Lenders in any Collateral pursuant to the liens securing the Loan. No secured party shall contest the priority, validity or enforceability of any lien held by or on behalf of any other secured party. b. Loans outstanding Obligations shall be subordinate to prior payment in full of any Credit Facility and shall be subordinate to the Credit Facility in liquidation or dissolution. c. 180 day standstill on Loan payments upon payment default or right to acceleration under Credit Facility pari passu with each other. Each Lender (the “Standstill PeriodIndemnifying Party”). d. , severally and not jointly with the other Lenders, shall indemnify, defend, and hold harmless each other Lender will not seek to or exercise remedies (“Indemnified Party”) against and in respect of the collateral described above until after the end of the Standstill Period any and in no event if the collateral agent for the Credit Agreement is diligently pursuing remedies with respect all claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries, and deficiencies, including interest, penalties, and reasonable professional and attorneys’ fees, including those arising from settlement negotiations, that any Indemnified Party shall incur or suffer, which arise, result from, or relate to the collateral. Lender shall otherwise have all rights and remedies as an unsecured creditor that is subordinate to the Credit Facilities. e. The collateral agent for the Credit Facility shall have the right to exercise all remedies in respect of the collateral and Lender shall not object to a breach of, or hinder remedies being exercised failure by the collateral agent for the Credit Indemnifying Party to perform under this Agreement. f. Lender shall not receive collateral or any proceeds of collateral in violation of the priorities described above. g. Any payments made to Lender in violation of subordination and collateral priority provisions described above shall be paid over to the lenders under the Credit Facility and no subrogation rights will be available to the Lender until the Credit Facility is paid in full. h. Customary notice provisions among Borrower13.3 For clarity, Lender and lenders under the Credit Facility. i. Following an event of default of the Credit Facility, Lender shall have the right to buyout the Credit Facility under Section 5.3(b) at any time after the earlier of (A) the end of the Standstill Period and (B) acceleration of the Credit Facility, provided that the buyout right in (B) shall expire 90 days following such acceleration event. j. The intercreditor agreement shall otherwise be in form and substance reasonably satisfactory to Lender, the Senior Lenders and Borrower. LIMITED GUARANTEE, dated as of [•], 2011 (this “Limited Guarantee”), by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as guarantor (the “Guarantor”) in favor of GSI Commerce, Inc., a Delaware corporation (the “Guaranteed Party”). The Guarantor hereby guarantees to the Guaranteed Party the payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the principal of and interest (including any interest, fees, costs or charges that would accrue but for the provisions of the Title 11 of the United States Code after any bankruptcy or insolvency petition under Title 11 of the United States Code) on the loan under the Loan Agreement, dated Convertible Debentures and Transaction Documents executed in connection therewith shall also constitute an event of default under the date hereof (the “Loan Agreement”), between NRG Commerce, LLC, as borrower (the “Borrower”), the guarantors listed on Schedule I hereto (the “Loan Guarantors”) Convertible Notes and the Guaranteed PartyTransaction Documents executed in connection therewith, as lender, and an event of default under the Convertible Notes and Transaction Documents executed in accordance with connection therewith shall also constitute an event of default under the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations); provided that in no event shall the Guarantor be obligated to pay an amount in excess of $30 million on account of its guarantee hereunder (the “Cap”), it being understood that the guarantee of the Guaranteed Obligations under this Limited Guarantee may not be enforced against the Guarantor without giving effect to the Cap. The Guarantor acknowledges and agrees that its guarantee obligations hereunder are irrevocable, absolute and continuing obligations. This Limited Guarantee may not be revoked or terminated and shall remain in full force and effect and shall be binding on the Guarantor, its successors and assigns until the Guaranteed Obligations have been paid in full. The guarantee obligations of the Guarantor hereunder shall constitute a guaranty of collection and not a guaranty of payment. In order to enforce the obligations of the Guarantor hereunder, the Guaranteed Party or any other person shall be required to have exercised due diligence in its pursuit of remedies against the Borrower Convertible Debentures and the Loan Guarantors for all or any portion of the Guaranteed Obligations and against any collateral pledged to secure the Guaranteed Obligations or other secured interest thereon. The parties hereto agree that, should a judgment be rendered by a court of competent jurisdiction or an arbitration panel against the Borrower and the Loan Guarantors Transaction Documents executed in respect of any Guaranteed Obligation, and such judgment remains unsatisfied for thirty (30) days, the party seeking to enforce against the Borrower or the Loan Guarantors shall be entitled to enforce such Guaranteed Obligation against the Guarantor as provided herein. In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of the Guarantor hereunder would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability hereunder, then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by the Guarantor, the Guaranteed Party or any other person, be automatically limited and reduced to the highest amount that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding. The Guarantor may not assign or delegate its rights, interests or obligations hereunder to any other person (except by operation of law) without the prior written consent of the Guaranteed Party. THIS LIMITED GUARANTEE SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOFconnection therewith.