Common use of Priority of Security Interests Clause in Contracts

Priority of Security Interests. (a) Notwithstanding any contrary priority established by (i) the filing dates of their respective financing statements, (ii) the recording dates of any other security perfection documents, (iii) which Lender has possession of, or control over, any of the Collateral or (iv) any statute or rule of law to the contrary, the Lenders agree that, except as otherwise provided under Section 3: (i) As of any date of determination, the Liens of the Ally Parties in Collateral constituting Ally Priority Collateral, determined as of such date, shall be senior in rank and order of priority and enforcement to the Liens and enforcement rights of Hercules in and against such Collateral; (ii) As of any date of determination, the Liens of Hercules in Collateral constituting Hercules Priority Collateral, determined as of such date, shall be senior in rank and order of priority and enforcement to the Liens and enforcement rights of the Ally Parties in and against such Collateral; (iii) As of any date of determination, the Liens of the Ally Parties in Collateral constituting Hercules Priority Collateral, determined as of such date, shall be junior and subordinate in rank, priority and enforcement to the Lien and enforcement rights of Hercules in and against such Collateral; (iv) As of any date of determination, the Liens of Hercules in Collateral constituting Ally Priority Collateral, determined as of such date, shall be junior and subordinate in rank, priority and enforcement to the Lien and enforcement rights of the Ally Parties in and against such Collateral; and (v) The Proceeds of Collection of the Hercules Priority Collateral and the Ally Priority Collateral shall be distributed as provided in Section 3 below. (b) The relative priorities set forth in subsection (a) above are subject to the following: (i) No Lender shall challenge or contravene the creation, attachment, perfection or enforceability of the Lien of the other Lender in its respective Collateral. The relative priorities described in Section 2.1(a) above, shall not apply to, however, and the provisions of this Agreement shall not be effective as to, any Lien which otherwise would be prior and superior, which Lien, by reason of any act or omission to act by the Lender whose rights therein under the Agreement would be superior, is judicially determined as not to be effective, or is rendered ineffective by reason of any act or omission to act of any third party to this Agreement; provided that such determination is not made on the basis of a claim or motion advanced by or on behalf of the other Lender. (ii) A Lender’s relative priority in the Proceeds (within the meaning of the UCC, including insurance proceeds) of an asset of a Borrower shall be determined based upon that Lender’s relative priority in the asset from which such Proceeds arose, as set forth in subsection (a) above, except as expressly provided otherwise in the defined term “Ally Priority Collateral”. (iii) If a Lender conducts an Enforcement Action, such Lender shall provide the other Lender with copies of all demands, communications, correspondence, and pleadings which relate to such Enforcement Action and a written statement of the results of such liquidation and the distribution of the Proceeds of Collection. The Proceeds of Collection shall be distributed in accordance with Section 3 below.

Priority of Security Interests. (a) Notwithstanding any contrary priority established by (i) the filing dates of their respective financing statements, (ii) the recording dates of any other security perfection documents, (iii) which Lender has possession of, or control over, any of the Collateral or (iv) any statute or rule of law to the contrary, the Lenders agree that, except as otherwise provided under Section 3: : (i) As of any date of determination, the Liens of the Ally Parties in Collateral constituting Ally Priority Collateral, determined as of such date, shall be senior in rank and order of priority and enforcement to the Liens and enforcement rights of Hercules in and against such Collateral; ; (ii) As of any date of determination, the Liens of Hercules in Collateral constituting Hercules Priority Collateral, determined as of such date, shall be senior in rank and order of priority and enforcement to the Liens and enforcement rights of the Ally Parties in and against such Collateral; ; (iii) As of any date of determination, the Liens of the Ally Parties in Collateral constituting Hercules Priority Collateral, determined as of such date, shall be junior and subordinate in rank, priority and enforcement to the Lien and enforcement rights of Hercules in and against such Collateral; ; (iv) As of any date of determination, the Liens of Hercules in Collateral constituting Ally Priority Collateral, determined as of such date, shall be junior and subordinate in rank, priority and enforcement to the Lien and enforcement rights of the Ally Parties in and against such Collateral; and and (v) The Proceeds of Collection of the Hercules Priority Collateral and the Ally Priority Collateral shall be distributed as provided in Section 3 below. . (b) The relative priorities set forth in subsection (a) above are subject to the following: : (i) No Lender shall challenge or contravene the creation, attachment, perfection or enforceability of the Lien of the other Lender in its respective Collateral. The relative priorities described in Section 2.1(a) above, shall not apply to, however, and the provisions of this Agreement shall not be effective as to, any Lien which otherwise would be prior and superior, which Lien, by reason of any act or omission to act by the Lender whose rights therein under the Agreement would be superior, is judicially determined as not to be effective, or is rendered ineffective by reason of any act or omission to act of any third party to this Agreement; provided that such determination is not made on the basis of a claim or motion advanced by or on behalf of the other Lender. (ii) A Lender’s relative priority in the Proceeds (within the meaning of the UCC, including insurance proceeds) of an asset of a Borrower shall be determined based upon that Lender’s relative priority in the asset from which such Proceeds arose, as set forth in subsection (a) above, except as expressly provided otherwise in the defined term “Ally Priority Collateral”. (iii) If a Lender conducts an Enforcement Action, such Lender shall provide the other Lender with copies of all demands, communications, correspondence, and pleadings which relate to such Enforcement Action and a written statement of the results of such liquidation and the distribution of the Proceeds of Collection. The Proceeds of Collection shall be distributed in accordance with Section 3 below.

Priority of Security Interests. (a) Notwithstanding any contrary priority established by (i) the filing dates of their respective financing statements, (ii) the recording dates of any other security perfection documents, (iii) which Lender has possession of, or control over, any of the Collateral (but expressly subject to Section 4.5) or (iv) any statute or rule of law to the contrary, the Lenders agree that, except as otherwise provided under Section 34: (i) As the Lien of any date of determination, the Liens of the Ally Parties CNB in CNB’s Priority Collateral constituting Ally Priority Collateral, determined as of such date, shall at all times be senior in rank and order of rank, priority and enforcement to the Liens Lien and enforcement rights of Hercules Madryn in and against such CNB’s Priority Collateral, to the extent of the CNB Priority Obligations; (ii) As the Lien of any date of determination, the Liens of Hercules Madryn in CNB’s Priority Collateral constituting Hercules Priority Collateral, determined as of such date, shall be senior in rank and order of priority and enforcement to the Liens and enforcement rights of the Ally Parties in and against such Collateral; (iii) As of any date of determination, the Liens of the Ally Parties in Collateral constituting Hercules Priority Collateral, determined as of such date, shall be junior and subordinate in rank, priority and enforcement to the Lien and enforcement rights of Hercules CNB in and against CNB’s Priority Collateral, to the extent of the CNB Priority Obligations; (iii) the Lien of Madryn in Madryn Priority Collateral shall at all times be senior in rank, priority and enforcement to the Lien and enforcement rights of CNB in and against such Madryn Priority Collateral; (iv) As the Lien of any date of determination, the Liens of Hercules CNB in Madryn Priority Collateral constituting Ally Priority Collateral, determined as of such date, shall be junior and subordinate in rank, priority and enforcement to the Lien and enforcement rights of the Ally Parties Madryn in and against such Madryn’s Priority Collateral; and; (v) The the Proceeds of Collection of the Hercules Madryn Priority Collateral and the Ally Proceeds of Collection of CNB Priority Collateral shall be distributed as provided in Section 3 4 below; (vi) the relative priority of the Liens specified in this Agreement applies only to Liens held by the Lenders (and by their respective agents) to secure Loans made under their respective Loan Agreements (and in the case of CNB Liens for Bank Services); (vii) each of Madryn and CNB consents to the grant of liens set forth in the CNB Loan Documents and the Madryn Loan Documents, in effect as of the date hereof. (b) The relative priorities set forth in subsection (a) above are subject to the following: (i) No Lender shall challenge or contravene the creation, attachment, perfection or enforceability of the Lien of the other Lender in its respective Collateral. The relative priorities described in Section 2.1(a) above, shall not apply to, however, and the provisions of this Agreement shall not be effective as to, any Lien which otherwise would be prior and superior, which Lien, by reason of any act or omission to act by the Lender whose rights therein under the Agreement would be superior, is judicially determined as not to be effective, or is rendered ineffective by reason of any act or omission to act of any third party to this Agreement; provided that such determination is not made on the basis of a claim or motion advanced by or on behalf of the other Lender. (ii) A Lender’s relative priority in the Proceeds proceeds (within the meaning of the UCCCode, but not including insurance proceedsproceeds of liquidation) of an asset of a Borrower Loan Party shall be determined based upon that Lender’s relative priority in the asset from which such Proceeds proceeds arose. (iii) The proceeds of the liquidation of any assets of a Loan Party conducted by any Lender and the proceeds of any insurance on assets of such Loan Party shall be distributed to the Lenders, to the extent available, in order of their respective priorities in the assets of the Loan Party giving rise to such proceeds, as set forth provided in subsection (a) above, except as expressly provided otherwise in the defined term “Ally Priority Collateral”. (iiiiv) If Any Lender which conducts a Lender conducts an Enforcement Action, such Lender liquidation shall provide the each other Lender with copies of all demands, communications, correspondence, and pleadings which relate to such Enforcement Action and Lender’s conduct of such liquidation. The proceeds of any liquidation shall be distributed accordance with subsection (a) above. Any Lender which conducts a liquidation shall provide the other Lender with a written statement of the results of such liquidation and the distribution of the Proceeds proceeds thereof. (v) Each of Collectionthe Lenders shall provide the other Lender with a copy of any notice of demand, or similar communication as and when given to any Loan Party. The Proceeds Each of Collection the Lenders shall be distributed in accordance make reasonable efforts to provide all others as and when received, given, or executed, copy of any amendment, modification, waiver, replacement or supplement of their respective Loan Documents with Section 3 belowthe Loan Party. No Lender shall have any liability to the other Lender for failure to comply with this subsection.