Priorities Regarding Collateral. Any and every lien and security interest in the Collateral in favor of or held for the benefit of Senior Creditor has and shall have priority over any lien or security interest that Subordinate Creditor now has or may hereafter acquire in the 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 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.
Appears in 1 contract
Sources: Intercreditor and Subordination Agreement (Qep Co Inc)
Priorities Regarding Collateral. (i) Any and every lien Lien and security interest in the Collateral in favor of or held for the benefit of the Senior Creditor Lenders to secure the Senior Indebtedness has and shall be senior and have priority over any lien Lien or security interest that Subordinate Creditor any Junior Lender now has or may hereafter acquire in the Collateral to secure the Subordinated Debt notwithstanding any statement or provision contained in the Subordinate Junior 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 Liens or assignments granted pursuant thereto, and irrespective of anything contained in any filing or agreement to which any part 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 applicable Uniform Commercial Code or under any other law governing the relative priorities of Liens or the interests 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 Indebtedness remains outstanding, and whether or not the same is then due and payable, the Proceeds proceeds of any sale, disposition or other realization Exercise of Secured Creditor Remedies by any Senior Creditor Lender 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 Junior Loan Document or security interest, lien Lien or assignment thereunder: . first, to the payment Payment-in-Full of interest and all costs and expenses of Senior Creditor (including, without limitation, Indebtedness in the reasonable fees and expenses of legal counsel and other agents) incurred order set forth in connection with the collection of such Proceeds or the protection of the rights and interests of Senior Creditor thereinCredit Agreement; second, to the payment in full in cash of all Senior Subordinated Debt in such the order as Senior Creditor shall determine set forth in its sole discretionthe Junior Credit Agreement; third, to the payment in full in cash of all interest and costs and expenses debt which would qualify as Senior Indebtedness but for the definition 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 discretionMaximum Senior Indebtedness Amount; and finally, to the payment of pay 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 full8, such party shall be deemed to hold all of such Proceeds in trust for the benefit of the each party entitled thereto under this Section 9 8.
(ii) The Junior Lenders confirm and agree that (1) the Junior Lenders have no right to compel action by any Senior Lender; (2) subject to the rights of the Junior Lenders under Section 5, the Senior Lenders and the Senior Agent have full authority to deal with the Collateral; (3) subject to the rights of the Junior Lenders under Section 5, the Junior Lenders will not act in the manner so as to make it materially burdensome for application as set forth aboveSenior Lenders to realize upon the Collateral to the extent such disposition complies with Section 8(iii) hereof. Subordinate Creditor To the extent required in order for the Junior Lenders to receive any proceeds of Collateral, the Junior Lenders 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 join (but not control in any replacement collateral, which proceeds shall be distributed in accordance with the provisions way unless permitted to do so by Section 5) any Exercise of this Agreement. Subordinate Secured 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 Remedies with respect to the Collateral upon initiated by the actual disposition Senior Agent or any other Senior Lender, so long as it does not delay or interfere in any respect with the exercise by the Senior Agent or other Senior Lenders of their respective rights as provided in this Agreement; provided that the foregoing restrictions shall be subject to the Junior Lenders’ rights under Section 5.
(iii) Each Junior Lender confirms and agrees that within five (5) Business Days of the Collateralrequest by the Senior Agent or the Required Senior Lenders, collateral agency arrangements such Junior Lender shall execute and deliver (whether pursuant or shall direct the Junior Agent to this Section 9 execute and deliver) such termination statements and releases as the Senior Agent or otherwise) the Required Senior Lenders shall reasonably request to ensure release the continuity of any lien Lien or security interest of Subordinate Creditor such Junior Lender or Junior Agent in the Proceeds from Collateral (and the release of any guaranty of a Guarantor being disposed of), in connection with a disposition of such collateral or sale of such Credit Party by any Senior Lender (or by a Credit Party with the consent of the Senior Lenders) if (A) the disposition is permitted (without the need to obtain further approval 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 Lender) by the Senior Loan Documents as in effect on the date hereof, (B) the disposition is occurring in connection with the Exercise of Secured Creditor Remedies by any Senior Lender, or (C) the Subordinate disposition occurs after the occurrence and during the continuation of an event of default under the Senior Loan Documents; provided that, Senior Creditor and Subordinate Creditor agree that in the event Borrower requests permission case of (B) and (C):
(a) the net proceeds of the sale or sales must be used to sellpermanently reduce the Senior Indebtedness with a concomitant permanent reduction in the commitments thereunder; and
(b) the Senior Lenders also are releasing (or foreclosing) their Liens on the subject Collateral.
(iv) Each Junior Lender agrees that it will not assert, transfer and hereby waives, to the fullest extent permitted by applicable law, any defense based on the adequacy of a remedy at law or dispose equity which might be asserted as a bar to the remedy of specific performance of the terms of this Agreement in any Collateral action brought therefor by the Senior Agent or any other Senior Lender; any claim it may now or hereafter have against the Senior Agent or any other Senior Lender arising out of presentment, demand, protest, notice of protest, notice of default or dishonor, notice of payment or nonpayment; and Senior Creditor approves such a any right to demand, request, plead or otherwise assert, or otherwise claim the Subordinate Creditor will consent to the sale of such Collateralbenefit of, release any lien marshalling, alienation, or security interest held by it thereinother similar rights a junior secured creditor may have under applicable law.
(v) Except as expressly provided herein, and terminate this Agreement shall not create 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 agency relationship between any of the Senior DebtLenders, on the one hand, and any Junior Lender, on the other hand.
(vi) In no event shall any Junior Lender institute, or join as a party in the institution of, or directly or indirectly assist in the prosecution of, any excess proceeds are used action, motion, defense, suit or proceeding (i) seeking a determination that any Lien of the Senior Lenders in any of the Collateral is invalid, unperfected or avoidable, or (ii) contesting or challenging the validity or enforceability of this Agreement. In no event shall any Senior Lender institute, or join as a party in the institution of, or directly or indirectly assist in the prosecution of, any action, motion, defense, suit or proceeding (i) seeking a determination that any Lien of the Junior Lenders in any of the Collateral is invalid, unperfected or avoidable, or (ii) contesting or challenging the validity or enforceability of this Agreement.
(vii) Nothing in this Agreement shall be construed as a waiver of any right that any Junior Lender has under applicable law or the applicable Uniform Commercial Code as a junior secured creditor with respect to pay Subordinated Debt. any strict foreclosure or like remedy undertaken by the Senior Creditor shall use reasonable efforts to provide Subordinate Creditor Agent or any other Senior Lender in connection with notice the enforcement 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 whatsoeverrights against Collateral.
Appears in 1 contract
Sources: Second Lien Credit, Note Purchase, Exchange and Termination Agreement (Syncardia Systems Inc)
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 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 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 part 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. In furtherance Any lien or security interest of this Agreement, Subordinate Subordinated Creditor hereby agrees in the Collateral and any and all rights of Subordinated Creditor to execute, acknowledge the Collateral are and deliver shall be inferior and subordinate to the rights of Senior Creditor such additional documents or instruments as may be requested by thereto. Until the Senior Indebtedness has been finally and irrevocably paid in full and the commitments of Senior Creditor to confirmunder the Loan Agreement shall have terminated as provided herein, evidenceSubordinated Creditor shall not make or permit any assignment, transfer, pledge or evidence disposition 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 Subordinated Indebtedness (or any agent therefor) upon all collateral 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 other 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 BorrowerIndebtedness). 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.
Appears in 1 contract
Priorities Regarding Collateral. Any and every lien and security interest in the Collateral in favor of or held for the benefit of Senior Creditor has and shall have priority over any lien or security interest that Subordinate Creditor now has or may hereafter acquire in the Collateral notwithstanding (a) Notwithstanding any statement or provision contained in the Subordinate Loan Documents or otherwise to the contrary contained in any Loan Document or any Infogrames Bridge Loan Document, any failure to file or record any financing statement or any continuations thereof under the UCC or other law of any applicable jurisdiction with respect to the Collateral, and irrespective of the time, place, order or method of attachment or perfection of any Lien granted to the Administrative Agent, for the ratable benefit of the Lenders and the Administrative Agent, under this Agreement or any other Loan Document or any Lien granted to Infogrames U.S. under this Agreement or any other Infogrames Bridge Loan Document, or the time or order of filing or recording of financing statements, deeds of trust, mortgages statements or other notices of security interests, liens or assignments Liens granted pursuant hereto or thereto, and irrespective of anything contained in any filing or agreement to which the Borrower, any part hereto other Grantor, the Administrative Agent, the Lenders or its respective successors and assigns Infogrames U.S. may now or hereafter be a party, and irrespective of the ordinary rules for determining priorities of priority under the UCC or under any other law governing the relative priorities of secured creditors. In furtherance , any Lien in the Collateral granted by the Borrower or any other Grantor to the Administrative Agent, for the ratable benefit of the Lenders and the Administrative Agent, pursuant to this Agreement or any other Loan Document shall at all times (whether before, after or during the pendency of any bankruptcy, reorganization or other insolvency proceedings) have priority over and be senior to any Lien in the Collateral granted by the Borrower or any other Grantor to Infogrames U.S. pursuant to this Agreement or any other Infogrames Bridge Loan Document.
(b) Without notice to or further assent by Infogrames U.S. and without modifying or limiting in any way the subordination of the Liens granted in the Collateral to Infogrames U.S. to secure the Bridge Obligations to the Liens granted in the Collateral to the Administrative Agent, for the ratable benefit of the Lenders and the Administrative Agent, to secure the Bank Obligations:
(i) any demand for payment of any Bank Obligations made by the Administrative Agent or the Lenders may be rescinded in whole or in part by such Lenders, and any Bank Obligations may be continued, and the Bank Obligations, or the liability of the Borrower or any other Grantor for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, or any obligation or liability of the Borrower or any other Grantor with respect to such Bank Obligations under the Credit Agreement or any other Loan Document may, from time to time, in whole or in part, be renewed, extended, modified, accelerated, compromised, waived, surrendered, or released by the Administrative Agent, acting at the direction of the Lenders pursuant to the Credit Agreement; and
(ii) the Credit Agreement and any other Loan Document may be amended, modified, supplemented or terminated, in whole or in part, in each case in respect of the Bank Obligations, and any Collateral may be exchanged, waived, surrendered or released, in each case in respect of the Bank Obligations.
(c) The terms of this Section 10 and the subordination of the Liens granted in the Collateral to Infogrames U.S. pursuant to this Agreement to secure the Bridge Obligations to the Liens granted in the Collateral to the Administrative Agent, for the ratable benefit of the Lenders and the Administrative Agent, to secure the Bank Obligations in the manner and to the extent set forth herein, shall not be affected by any exercise of, or failure to exercise, any right, power or remedy, or any waiver, consent release, increase, extension, renewal, modification, delay or non-perfection under or in respect of the Bank Obligations, 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 recordthe other Loan Documents, the terms and conditions of Bridge Obligations, the other Infogrames Bridge Loan Documents or the Collateral. The Bank Obligations shall be deemed conclusively to have been created, contracted or incurred in reliance upon this Agreement. At any time during which all or any part of the Senior Debt remains outstanding, and whether or not all dealings among the same is then due Administrative Agent and payablethe Lenders on the one hand, and Infogrames U.S. on the Proceeds of any saleother hand, 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 have been consummated 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 reliance 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.
Appears in 1 contract
Priorities Regarding Collateral. Any and every lien and security interest in the Collateral in favor of or held for the benefit of Senior Creditor 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 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 part 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. 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.;
Appears in 1 contract
Priorities Regarding Collateral. Any and every lien and security interest in the Collateral in favor of or held for the benefit of Senior Creditor has and shall have priority over any lien or security interest that Subordinate Creditor now has or may hereafter acquire in the Collateral notwithstanding (a) Notwithstanding any statement or provision contained in the Subordinate Loan Documents or otherwise to the contrary contained in any Loan Document or any Infogrames Bridge Loan Document, any failure to file or record any financing statement or any continuations thereof under the Code or other law of any applicable jurisdiction with respect to the Collateral, and irrespective of the time, place, order or method of attachment or perfection of any Lien granted to the Administrative Agent, for the ratable benefit of the Lenders and the Administrative Agent, under this Pledge Agreement or any other Loan Document or any Lien granted to Infogrames U.S. under this Pledge Agreement or any other Infogrames Bridge Loan Document, or the time or order of filing or recording of financing statements, deeds of trust, mortgages statements or other notices of security interests, liens or assignments Liens granted pursuant hereto or thereto, and irrespective of anything contained in any filing or agreement to which the Borrower, any part hereto other Pledgor, the Administrative Agent, the Lenders or its respective successors and assigns Infogrames U.S. may now or hereafter be a party, and irrespective of the ordinary rules for determining priorities of priority under the UCC Code 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 any Lien in the Collateral granted by Senior Creditor to confirm, evidence, or evidence of record, the terms and conditions of this Agreement. At any time during which all Borrower or any part other Pledgor to the Administrative Agent, for the ratable benefit of the Senior Debt remains outstandingLenders and the Administrative Agent, and pursuant to this Pledge Agreement or any other Loan Document shall at all times (whether before, after or not during the same is then due and payable, the Proceeds pendency of any salebankruptcy, disposition reorganization or other realization insolvency proceedings) have priority over and be senior to any Lien in the Collateral granted by Senior Creditor or other party hereto (the Borrower or any agent therefor) upon all other Pledgor to Infogrames U.S. pursuant to this Pledge Agreement or any part other Infogrames Bridge Loan Document.
(b) Without notice to or further assent by Infogrames U.S. and without modifying or limiting in any way the subordination of the Collateral shall be applied Liens granted in the following order of priorities irrespective Collateral to Infogrames U.S. to secure the Bridge Obligations to the Liens granted in the Collateral to the Administrative Agent, for the ratable benefit of the application of any rule of law or Lenders and the defect or impairment of any Senior Loan Document, Subordinate Loan Document or security interest, lien or assignment thereunder: firstAdministrative Agent, to secure the payment of interest and all costs and expenses of Senior Creditor Bank Obligations:
(including, without limitation, the reasonable fees and expenses of legal counsel and other agentsi) 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 any demand for payment of any surplus then remaining Bank Obligations made by the Administrative Agent or the Lenders may be rescinded in whole or in part by such Lenders, and any Bank Obligations may be continued, and the Bank Obligations, or the liability of the Borrower or any other Pledgor for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, or any obligation or liability of the Borrower or any other Pledgor with respect to such Bank Obligations under the Credit Agreement or any other Loan Document may, from time to time, in whole or in part, be renewed, extended, modified, accelerated, compromised, waived, surrendered, or released by the Administrative Agent, acting at the direction of the Lenders pursuant to the owner Credit Agreement; and
(ii) the Credit Agreement and any other Loan Document may be amended, modified, supplemented or terminated, in whole or in part, in each case in respect of the Bank Obligations, and any Collateral may be exchanged, waived, surrendered or its successors or assigns or as a court released, in each case in respect of competent jurisdiction may direct. In the event any party to Bank Obligations.
(c) The terms of this Agreement receives Proceeds Paragraph 14 and the subordination of the Liens granted in the Collateral to which it is Infogrames U.S. pursuant to this Pledge Agreement to secure the Bridge Obligations to the Liens granted in the Collateral to the Administrative Agent, for the ratable benefit of the Lenders and the Administrative Agent, to secure the Bank Obligations in the manner and to the extent set forth herein, shall not entitled under this Section 9be affected by any exercise of, or failure to exercise, any right, power or remedy, or any waiver, consent release, increase, extension, renewal, modification, delay or non-perfection under or in the case respect of the Senior CreditorBank Obligations, this Pledge Agreement, the other Loan Documents, the Bridge Obligations, the other Infogrames Bridge Loan Documents or the Collateral. The Bank Obligations shall be deemed conclusively to have been created, contracted or incurred in excess of reliance upon this Pledge Agreement, and all dealings among the amount required to satisfy all of Administrative Agent and the obligations of Borrower to Senior Creditor in fullLenders on the one hand, such party and Infogrames U.S. on the other hand, shall be deemed to hold all of such Proceeds have been consummated in trust for the benefit of the party entitled thereto under reliance upon 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 Pledge 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.
Appears in 1 contract
Priorities Regarding Collateral. Any and every lien and security interest in (i) Notwithstanding (a) the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the Junior Debt granted on the Collateral or of any Liens securing the Senior Indebtedness granted on the Collateral, or any failure of any Senior Agent to adequately perfect any Liens on the Collateral, and notwithstanding any provision of the UCC, or any applicable Law, (b) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of Junior Creditor in any Collateral, (c) the date or held for dates on which any Junior Debt or any Senior Indebtedness are advanced or made available to any Credit Party, (d) the benefit fact that any such Liens in favor of any Junior Creditor securing any of the Junior Debt are subordinated to any Lien securing any obligation of any Credit Party other than the Senior Indebtedness or otherwise subordinated, (e) the fact that any such Liens in favor of any Senior Agent or any Senior Creditor has and shall have priority over securing any lien of the Senior Indebtedness are subordinated to any Lien securing any obligation of any Credit Party or security interest that Subordinate Creditor now has otherwise subordinated, (f) the avoidance, invalidation, unenforceability or may hereafter acquire in lapse of any Lien on the Collateral notwithstanding securing any statement Senior Indebtedness, 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 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 (g) any other law governing circumstances of any kind or nature whatsoever, the relative priorities Junior Creditor and the Senior Agent, on behalf of secured creditors. In furtherance of this Agreementitself and each applicable Senior Creditor, 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 that: (A) any Lien in respect of record, the terms and conditions of this Agreement. At any time during which all or any part portion of the Collateral held by or on behalf of any Junior Creditor, regardless of how acquired, that secures all or any portion of the Junior Debt, shall in all respects be junior and subordinate to the Liens in favor of any Senior Agent and any Senior Creditor in all or such portion of the Collateral securing all or any portion of the Senior Indebtedness in an amount up to the Senior Debt remains outstandingCap, unless and whether or not until the same is then due and payableSenior Indebtedness has been Paid-in-Full, the Proceeds (B) any Lien in respect of any sale, disposition or other realization by Senior Creditor or other party hereto (or any agent therefor) upon all or any part portion of the Collateral shall be applied in the following order of priorities irrespective of the application of any rule of law held by or the defect or impairment on behalf of any Senior Loan DocumentAgent or any Senior Creditor, Subordinate Loan Document regardless of how acquired, that secures all or security interestany portion of the Senior Indebtedness in an amount up to the Senior Debt Cap shall in all respects be senior and prior to any Liens in favor of any Junior Creditor in all or such portion of the Collateral securing all or any portion of the Junior Debt, lien unless and until Senior Indebtedness has been Paid-in-Full, and (C) any Lien in respect of all or assignment thereunder: firstany portion of the Collateral held by or on behalf of any Senior Agent or any Senior Creditor, regardless of how acquired, to the payment extent that it secures all or any portion of interest Excess Senior Obligations, shall to such extent be junior 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, subordinate to the payment Liens 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 favor of any surplus then remaining to the owner Junior Creditor in all or such portion of the Collateral securing all or its successors or assigns or as a court any portion of competent jurisdiction may directthe Junior Debt, unless and until the Junior Debt has been Paid-in-Full. In the event that any party to this Agreement Junior Creditor or any Senior Agent or any Senior Creditor receives Proceeds of the Collateral to which it is not entitled under this Section 9Agreement, such Junior Creditor or in the case of the such Senior Agent or Senior Creditor, in excess of as the amount required to satisfy all of the obligations of Borrower to Senior Creditor in fullcase may be, such party shall be deemed to hold all of such Proceeds in trust for the benefit of the each party entitled thereto under this Section 9 for application as set forth above. Subordinate thereto.
(ii) The Junior Creditor agrees that it shall be entitled not (and hereby waives any right to) take any action to rely upon contest or challenge (or assist or support any order other Person in contesting or decree made by challenging), directly or indirectly, whether or not in any court of competent jurisdiction proceeding (including in which proceedings are pendingany Proceeding), (i) the validity, priority, enforceability, 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 perfection of any security interest, lien, claim, attachment Liens held or right purported to be held by or on behalf of the Subordinate any Senior Agent or any Creditor or, if Senior Creditor requests, by Borrower in any Collateral securing all 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 any portion of the Senior Creditor and Subordinate Creditor shall continue in the proceeds of any such sale Indebtedness, or in any replacement collateral, which proceeds shall be distributed in accordance with (ii) the provisions of this Agreement. Subordinate The Junior Creditor agrees that it shall not take any action that would interfere with any exercise of any secured creditor remedies undertaken by any Senior Creditor with respect to the Collateral in respect of any Senior Indebtedness. The Junior Creditor waives any and all rights it may have as a junior lien creditor or otherwise to contest, protest, object to, or interfere with the manner in which any Senior Agent or any Senior Creditor seeks to enforce its Liens in any Collateral in respect of any Senior Indebtedness. The Junior Creditor confirms and agrees that the Junior Creditor has no right to compel action by any Senior Creditor in respect of the Collateral, and that the Senior Creditors have full authority to deal with the Collateral in accordance with applicable Law and in accordance with this Agreement until the Payment-in-Full of the Senior Indebtedness. The foregoing shall not be construed to prohibit the Junior Creditor from enforcing the provisions of this Agreement.
(iii) The Senior Agent, for and on behalf of itself and each applicable Senior Creditor, agrees that it shall not (and hereby waives any right to) take any action to contest or challenge (or assist or support any other Person in contesting or challenging), directly or indirectly, whether or not in any proceeding (including in any Proceeding), (i) the validity, priority, enforceability, or perfection of any Liens held or purported to be held by or on behalf of the Junior Creditor in any Collateral securing all or any portion of the Junior Debt or (ii) the provisions of this Agreement. The foregoing will not be construed to prohibit any Senior Agent or any Senior Creditor from enforcing the provisions of this Agreement or the priority of its Liens on the Collateral securing any Senior Indebtedness.
(iv) The Junior Creditor confirms and agrees that promptly upon, and in any event with five (5) Business Days of, the written request by the Senior Agent, the Junior Creditor shall execute and deliver (or shall direct any agent acting on its behalf to execute and deliver) such consents, termination statements and releases as the Senior Agent (or any other agent acting on its behalf) shall reasonably request to consent to the disposition, if necessary, and release the Lien or security interest of the Junior Creditor in the Collateral, in connection with a disposition of such Collateral (including a disposition by strict foreclosure) or sale of such Credit Party by any Senior Lender (or by a Credit Party with the consent of the Senior Lenders) provided that (y) the Junior Creditor has a Lien on the proceeds of any such Collateral disposed of or sold to the same extent and priority of its Lien prior to such disposition or sale and (z) one of the following clauses is satisfied:
(a) the Senior Agent (or an agent acting on its behalf) has caused such disposition in connection with its Exercise of Secured Creditor Remedies against such Collateral;
(1) such disposition or sale is permitted under the Senior Loan Documents and (2) the Senior Agent and the other Senior Creditors also shall release all of their Liens on such Collateral; or
(c) the Required Senior Lenders have consented to the release of their and the Senior Agent’s Liens on the subject Collateral in connection with a disposition or sale thereof and such Liens are actually released. If in connection with a disposition of such Collateral constituting Equity Interests of a Credit Party (other than the Borrower) that satisfies the applicable conditions in this Section 7(iv), the Senior Agent (or an agent acting on its behalf, in each case at the instruction of the Required Senior Lenders) releases the obligations of such Credit Party under its guaranty of the Senior Indebtedness, then the Junior Creditor shall release such Credit Party of any obligations it has to the Junior Creditor in respect of its guaranty of the Junior Debt shall be automatically, unconditionally and simultaneously released. The Junior Creditor hereby appoints the Senior Agent and any officer or duly authorized Person of the Senior Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the Junior Creditor or in the Senior Agent’s own name, from time to time, in the Senior Agent’s sole discretion, for the purposes of carrying out the terms of this Section 7(iv), to take such any and all appropriate action and to execute and deliver any and all documents and instruments as Senior Creditor may request be necessary or desirable to facilitate such collection, sale or dispositionaccomplish the purposes of this Section 7(iv), including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable).
(v) The Junior Creditor acknowledges that (a) all or a portion of the Senior Indebtedness may be revolving in nature, (b) the amount thereof that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed, and (c) the Senior Indebtedness may be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, refinanced or otherwise amended or modified from time to time, without notice to or consent by the Junior Creditor and without affecting the provisions hereof. The lien priorities provided herein shall not be altered or otherwise affected by any increase, extension, renewal, replacement, restatement, supplement, restructuring, repayment, refund, refinancing or other amendment or modification of either the Senior Indebtedness or the Junior Debt, or any portion thereof, by the release of its lien any Collateral or security interest and of any guarantees securing any Senior Indebtedness or Junior Debt or by any action that any Senior Creditor or the termination of financing statements, attachments and the like with respect to the Collateral. Subordinate Junior Creditor may condition the execution and delivery, take or the effectiveness, fail to take in respect of any proposed release Collateral.
(vi) Until the Senior Indebtedness has been Paid-in-Full, the Junior Creditor agrees not to assert or enforce any right of marshalling accorded to a lien or security interest junior lienholder, as against the Senior Creditors.
(vii) Except as expressly set forth in this Agreement, none of the Senior Agents nor any of the other Senior Creditors shall be responsible for perfecting and maintaining the perfection of Liens with respect to the Collateral upon for the actual disposition benefit of the Collateral, collateral agency arrangements (whether pursuant Junior Creditor. The provisions of this Agreement are intended solely to this Section 9 govern the respective Lien priorities as between the Senior Creditors and the Junior Creditors and shall not impose on any of the Senior Creditors or otherwise) to ensure the continuity Junior Creditor or any agent or trustee therefor any obligations in respect of any lien or security interest of Subordinate Creditor in the Proceeds from the disposition of proceeds of any Collateral which would conflict with prior perfected claims therein in favor of any other Person or any order or decree of any court or governmental authority or any applicable law.
(viii) Until 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 Payment-in-Full of the Collateral now Senior Indebtedness shall have occurred, (A) the Junior Creditor agrees that it shall not hold any Lien on any assets of any Credit Party or hereafter made by Senior Creditor upon Borrower's default or demand by any of their respective Subsidiaries securing any Junior Debt which assets are not also subject to the Lien of the Senior Agent under the Senior Loan Documents, and (B) each Credit Party agrees not to grant any Lien on any of its assets, or permit any of its Subsidiaries to ▇▇▇▇▇ ▇ ▇▇▇▇ on any of its assets, in favor of the Junior Creditor as (or any agent therefor) unless it, or such Subsidiary, has granted (or offered to grant with a reasonable opportunity for such Lien to be accepted) a corresponding Lien on such assets in favor of the Senior Agent for the benefit of the Senior Creditors under the Senior Loan Documents. If the Junior Creditor shall (nonetheless and in breach hereof) acquire any Senior Debt (including without limitation the compromise Lien on any assets of any accounts Credit Party or claims any of Borrowertheir respective Subsidiaries securing any Junior Debt which assets are not also subject to the Lien of the Senior Agent, then the Junior Creditor (or any agent therefor). Notwithstanding , shall, without the need for any further consent of any other Person and notwithstanding anything to the contrary contained in this Agreement or in the Senior Loan Documents or the Subordinate Loan Documents, Senior Creditor any other Junior Debt Document either (x) hold and Subordinate Creditor agree that in the event Borrower requests permission be deemed to sell, transfer or dispose of any Collateral have held such Lien 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 also for 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 benefit of the Senior Debt, any excess proceeds are used to pay Subordinated Debt. Agent as security for the 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 underIndebtedness, or be deemed to be a breach or default under this Agreement, nor shall (y) release such failure give Subordinate Creditor the right to challenge such action, or the distribution of proceeds thereof, for any reason whatsoeverLien.
Appears in 1 contract
Sources: Intercreditor and Subordination Agreement (BurgerFi International, Inc.)
Priorities Regarding Collateral. Any (b) Without notice to or further assent by Infogrames U.S. and every lien and security interest without modifying or limiting in any way the subordination of the Liens granted in the Collateral in favor of or held for to Infogrames U.S. to secure the benefit of Senior Creditor has and shall have priority over any lien or security interest that Subordinate Creditor now has or may hereafter acquire Bridge Obligations to the Liens granted in the Collateral notwithstanding to the Administrative Agent, for the ratable benefit of the Lenders and the Administrative Agent, to secure the Bank Obligations:
(i) any statement demand for payment of any Bank Obligations made by the Administrative Agent or provision contained the Lenders may be rescinded in whole or in part by such Lenders, and any Bank Obligations may be continued, and the Bank Obligations, or the liability of the Borrower or any other Grantor for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, or any obligation or liability of the Borrower or any other Grantor with respect to such Bank Obligations under the Credit Agreement or any other Loan Document may, from time to time, in whole or in part, be renewed, extended, modified, accelerated, compromised, waived, surrendered, or released by the Administrative Agent, acting at the direction of the Lenders pursuant to the Credit Agreement; and
(ii) the Credit Agreement and any other Loan Document may be amended, modified, supplemented or terminated, in whole or in part, in each case in respect of the Bank Obligations, and any Collateral may be exchanged, waived, surrendered or released, in each case in respect of the Bank Obligations.
(c) The terms of this Section 10 and the subordination of the Liens granted in the Subordinate Collateral to Infogrames U.S. pursuant to this Agreement to secure the Bridge Obligations to the Liens granted in the Collateral to the Administrative Agent, for the ratable benefit of the Lenders and the Administrative Agent, to secure the Bank Obligations in the manner and to the extent set forth herein, shall not be affected by any exercise of, or failure to exercise, any right, power or remedy, or any waiver, consent release, increase, extension, renewal, modification, delay or non-perfection under or in respect of the Bank Obligations, this Agreement, the other Loan Documents, the Bridge Obligations, the other Infogrames Bridge Loan Documents or otherwise the Collateral. The Bank Obligations shall be deemed conclusively to the contrary and irrespective of the time have been created, contracted 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 incurred in any filing or agreement to which any 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 reliance upon 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, all dealings among the terms Administrative Agent and conditions of this Agreement. At any time during which all or any part of the Senior Debt remains outstandingLenders on the one hand, and whether or not Infogrames U.S. on the same is then due and payableother hand, 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 have been consummated 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 reliance 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.
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Priorities Regarding Collateral. Any and every lien and security interest in the Collateral in favor of or held for the benefit of Senior Creditor has and shall have priority over any lien or security interest that Subordinate Creditor now has or may hereafter acquire in the 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 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 arising from any note, agreement, instrument or document now or hereafter executed and delivered by Senior Lenders, Subordinated Lender, Borrower, Guarantor or any of the Personal Guarantors in connection with the Senior Loan or the Subordinated Loan, including without limitation the terms and conditions of any promissory note, security agreement, guaranty agreement or mortgage executed and delivered by Borrower, Guarantor or any of the Personal Guarantors to the Senior Lenders or Subordinated Lender, or any instrument or document executed and delivered in connection therewith, or otherwise, any prior perfection of a security interest, mortgage, deed of trust, lien, or the provisions of the Uniform Commercial Code, or other law of any jurisdiction which is applicable, or the existence of any present or future filing of financing statements under the Uniform Commercial Code, or other law of any jurisdiction which is applicable, or other filings or recordings under any other law of any jurisdiction which is applicable or in which such filing or recording has been made:
(a) the priorities of the liens and security interests of the Senior Lenders 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 (including proceeds of such Collateral are used to pay Senior Debt casualty and that, following the full, final and indefeasible payment in cash of title insurance) securing the Senior Debt, shall be senior and prior to any excess proceeds are used liens and security interests of Subordinated Lender at any time obtained on such collateral, and the liens and security interests of Subordinated Lender at any time obtained in such Senior Collateral shall be junior liens and security interests subject to pay the liens and security interests of the Senior Lenders.
(b) in the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization, arrangement or other similar proceedings in connection therewith, relative to Borrower, Guarantor or any Personal Guarantor, or to their property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding up of Borrower, Guarantor or any Personal Guarantor, whether or not involving insolvency or bankruptcy, (i) the Senior Lenders shall be entitled to receive payment in full of the Senior Debt before Subordinated DebtLender shall be entitled to receive any payment on the Subordinated Notes, and to that end the Senior Lenders shall be entitled to receive for application in payment thereof any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in any such proceedings in respect of the Subordinated Notes and (ii) after all the Senior Debt has been paid in full, Subordinated Lender shall be entitled to receive full payment on the Subordinated Notes. Subordinated Lender hereby irrevocably authorizes and empowers any Senior Lender to file claims in the Senior Lender's own name or names or naming and claiming through the Subordinated Lender, as may be necessary or advisable for the enforcement of this agreement in any bankruptcy, receivership, liquidation, insolvency or winding up of Borrower, Guarantor, or any Personal Guarantor and to collect and receive any and all payments or distributions which may be payable or deliverable at any time upon or with respect to the Subordinated Notes until the Senior Debt has been paid in full. Senior Creditor shall use reasonable efforts to Lenders will provide Subordinate Creditor Lender with notice copies of its intent to take any actions described in this paragraph documents filed naming and an opportunity to discuss such proposed actions, but claiming through the failure for any reason whatsoever of Senior Creditor to so provide Subordinated Lender. Subordinated Lender 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 retain the right to challenge vote and otherwise act in any such actionproceeding, including without limitation, the right to file claims in its own behalf, and to vote to accept or reject any plan of partial or complete liquidation, reorganization, arrangement, composition, or the distribution of proceeds thereof, for any reason whatsoeverextension.
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Priorities Regarding Collateral. Any and every lien and security interest in the Collateral in favor of or held for the benefit of Senior Creditor has and shall have priority over any lien or security interest that Subordinate Creditor now has or may hereafter acquire in the Collateral notwithstanding (a) Notwithstanding any statement or provision contained in the Subordinate Loan Documents or otherwise to the contrary contained in any Loan Document or any Infogrames Bridge Loan Document, any failure to file or record any financing statement or any continuations thereof under the Code or other law of any applicable jurisdiction with respect to the Collateral, and irrespective of the time, place, order or method of attachment or perfection of any Lien granted to the Administrative Agent, for the ratable benefit of the Lenders and the Administrative Agent, under this Pledge Agreement or any other Loan Document or any Lien granted to Infogrames U.S. under this Pledge Agreement or any other Infogrames Bridge Loan Document, or the time or order of filing or recording of financing statements, deeds of trust, mortgages statements or other notices of security interests, liens or assignments Liens granted pursuant hereto or thereto, and irrespective of anything contained in any filing or agreement to which the Borrower, any part hereto other Pledgor, the Administrative Agent, the Lenders or its respective successors and assigns Infogrames U.S. may now or hereafter be a party, and irrespective of the ordinary rules for determining priorities of priority under the UCC Code 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 any Lien in the Collateral granted by Senior Creditor to confirm, evidence, or evidence of record, the terms and conditions of this Agreement. At any time during which all Borrower or any part other Pledgor to the Administrative Agent, for the ratable benefit of the Senior Debt remains outstandingLenders and the Administrative Agent, and pursuant to this Pledge Agreement or any other Loan Document shall at all times (whether before, after or not during the same is then due and payable, the Proceeds pendency of any salebankruptcy, disposition reorganization or other realization insolvency proceedings) have priority over and be senior to any Lien in the Collateral granted by Senior Creditor or other party hereto (the Borrower or any agent therefor) upon all other Pledgor to Infogrames U.S. pursuant to this Pledge Agreement 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 other Infogrames Bridge 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 agentsi) 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 any demand for payment of any surplus then remaining Bank Obligations made by the Administrative Agent or the Lenders may be rescinded in whole or in part by such Lenders, and any Bank Obligations may be continued, and the Bank Obligations, or the liability of the Borrower or any other Pledgor for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, or any obligation or liability of the Borrower or any other Pledgor with respect to such Bank Obligations under the Credit Agreement or any other Loan Document may, from time to time, in whole or in part, be renewed, extended, modified, accelerated, compromised, waived, surrendered, or released by the Administrative Agent, acting at the direction of the Lenders pursuant to the owner Credit Agreement; and
(ii) the Credit Agreement and any other Loan Document may be amended, modified, supplemented or terminated, in whole or in part, in each case in respect of the Bank Obligations, and any Collateral may be exchanged, waived, surrendered or its successors or assigns or as a court released, in each case in respect of competent jurisdiction may direct. In the event any party to Bank Obligations.
(c) The terms of this Agreement receives Proceeds Paragraph 14 and the subordination of the Liens granted in the Collateral to which it is Infogrames U.S. pursuant to this Pledge Agreement to secure the Bridge Obligations to the Liens granted in the Collateral to the Administrative Agent, for the ratable benefit of the Lenders and the Administrative Agent, to secure the Bank Obligations in the manner and to the extent set forth herein, shall not entitled under this Section 9be affected by any exercise of, or failure to exercise, any right, power or remedy, or any waiver, consent release, increase, extension, renewal, modification, delay or non-perfection under or in the case respect of the Senior CreditorBank Obligations, this Pledge Agreement, the other Loan Documents, the Bridge Obligations, the other Infogrames Bridge Loan Documents or the Collateral. The Bank Obligations shall be deemed conclusively to have been created, contracted or incurred in excess of reliance upon this Pledge Agreement, and all dealings among the amount required to satisfy all of Administrative Agent and the obligations of Borrower to Senior Creditor in fullLenders on the one hand, such party and Infogrames U.S. on the other hand, shall be deemed to hold all of such Proceeds have been consummated in trust for the benefit of the party entitled thereto under reliance upon 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 Pledge 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.
Appears in 1 contract
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 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 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 part 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. 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 Second Lien Creditor shall be entitled to rely upon any 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 Subordinate 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 BorrowerBorrowers, 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 ; provided, however, that to give effect to this provision the Senior Secured Creditor hereby consents 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 collectionclose of business, sale 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 other disposition elsewhere in this Agreement, during 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 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 by the Senior or Proceeds; and (b) in no event shall Second Lien Creditor free seek or take a Lien on any assets of any security interest, lien, claim, attachment or right of the Subordinate Loan Parties unless Senior Secured Creditor or, if Senior also has a Lien on such assets that is superior to any Lien that Second Lien Creditor requests, by Borrower or its successor, including a trustee in bankruptcy, provided that has covering such assets and is made subject to 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 terms of this Agreement. Subordinate 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 agrees pursuant to take such action as Senior the terms hereof and any funds received by the Second Lien 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 such assets shall be held in trust for 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 benefit of the CollateralSenior Secured Creditor. Senior Secured Creditor agrees that, collateral agency arrangements (whether pursuant upon payment in full of the Senior Secured Debt and upon termination of the security interests and Liens securing the Senior Secured Debt, the Senior Secured Creditor shall deliver all Collateral in its possession or under its control to Second Lien Creditor. Nothing in 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 elsewhere in this Agreement or in the Senior Loan Documents or the Subordinate Loan Documents, Senior Creditor is intended (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 be construed) to permit a court or Subordinate Creditor under, other authority to disregard or be deemed to be a breach modify in its discretion payment or default under Lien priorities set forth in this Agreement, nor shall such failure give Subordinate but rather is intended simply to indicate that Second Lien Creditor may rely on the right to challenge such action, or interpretation of a court of competent jurisdiction regarding interpretation of this Agreement and the distribution of proceeds thereof, for any reason whatsoeverappropriate payment priorities in accordance with this Agreement.
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