1.
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Ranking.
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1.1
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The
Indebtedness shall rank in the following order of priority: any sums
secured or owed to the Existing Creditors or the New Creditors,
pari
passu
and pro-rata
in
proportion to such Creditor’s outstanding principal amounts of
Indebtedness at any given time that a determination needs to be made
of
pro-rata holdings. For clarity, as of the date of the closing of
the
issuance of the New Indebtedness, the pro-rata
holdings of the Existing Creditors (collectively) are $30,877,552
and the
pro-rata
holdings of the New Creditors (collectively) are $14,891,250. The
Creditors authorize the Collateral Agent to perform its obligations
under
the Security Agreements pursuant to this provision. The Company and
each
Subsidiary agree that all payments of Obligations under the New
Indebtedness and the Existing Indebtedness shall be made in accordance
with the relative priorities and proportions set forth herein. In
addition, the Company hereby agrees to cause all direct and indirect
subsidiaries hereafter formed or acquired to agree to be bound by
the
terms of this Agreement.
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1.2
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If
an Event of Default (as defined under any Indebtedness) occurs and
any
party hereto receives payment from the Company not in compliance
with this
Agreement, the other parties hereto shall be immediately notified
and such
payment shall be shared with all of the other Creditors in proportion
to
their respective pro-rata holdings as set forth
above.
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1.3
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If
an Event of Default occurs and any party hereto collects proceeds
pursuant
to its rights under any Indebtedness, the other parties shall be
immediately notified and such payment shall be shared with all of
the
other Creditors as set forth above.
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1.4
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Notwithstanding
any other provision in this Agreement, adjustments shall be made
between
the Creditors from time to time to reflect the fact that any contingent
obligation taken into account as an obligation under the Indebtedness
becomes satisfied or incapable of maturing into an actual
obligation.
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1.5
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Notwithstanding
anything to the contrary contained in the Purchase Agreement or any
document executed in connection with the New Indebtedness or the
Existing
Indebtedness and irrespective of: (i) the time, order or method of
attachment or perfection of the security interests created in favor
of
Existing Creditors and the New Creditors, (ii) the time or order
of filing
or recording of financing statements or other documents filed or
recorded
to perfect security interests in any collateral; (iii) anything contained
in any filing or agreement to which any Creditor now or hereafter
may be a
party; and (iv) the rules for determining perfection or priority
under the
Uniform Commercial Code or any other law governing the relative priorities
of secured creditors, each Creditor acknowledges that (x) all other
Creditors have a valid security interest in the Collateral and (y)
the
security interests of the Creditors in any Collateral pursuant to
any
outstanding Indebtedness shall be pari-passu with each
other.
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1.6
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Each
Creditor agrees not to commence any action or proceeding concerning
the
Indebtedness or the Collateral without providing at least one business
day’s notice to all Creditors.
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2.
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Indemnification
by Existing Creditors.
Existing Creditors shall indemnify, defend, and hold harmless New
Creditors against and in respect of any and all claims, demands,
losses,
costs, expenses, obligations, liabilities, damages, recoveries, and
deficiencies, including interest, penalties, and reasonable professional
and attorneys’ fees, including those arising from settlement negotiations,
that New Creditors shall incur or suffer, which arise, result from,
or
relate to a breach of, or failure by Existing Creditors to perform
under
this Agreement.
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3.
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Indemnification
by New Creditors.
New Creditors shall indemnify, defend, and hold harmless Existing
Creditors against and in respect of any and all claims, demands,
losses,
costs, expenses, obligations, liabilities, damages, recoveries, and
deficiencies, including interest, penalties, and reasonable professional
and attorneys’ fees, including those arising from settlement negotiations,
that Existing Creditors shall incur or suffer, which arise, result
from,
or relate to a breach of, or failure by New Creditors to perform
under
this Agreement.
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4.
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Miscellaneous.
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