Intercreditor Agreement, by and among Hercules Capital, Inc., Ally Bank and Ally Financial, Inc. and agreed to by the Company, NextGen Pro, LLC RMBL Missouri, LLC, and RMBL Texas, LLC, dated April 30, 2018

 

 

 

 

A. Hercules, RUMBLEON, INC., a Nevada corporation (“Parent”), NEXTGEN PRO, LLC, a Delaware limited liability company (“NextGen Pro”), RMBL MISSOURI, LLC, a Delaware limited liability company (“RMBL Missouri”), RMBL TEXAS, LLC, a Delaware limited liability company (“RMBL Texas”), and certain other persons from time to time party hereto (together with Parent, NextGen Pro, RMBL Missouri and RMBL Texas, individually, each, a “Borrower”, and collectively, “Borrowers”) are parties to that certain Loan and Security Agreement, dated as of April 30, 2018 (as may be amended, modified, restated, replaced, or supplemented from time to time, the “Hercules Loan Agreement”), whereby Hercules has made or will make available to Borrower a secured loan facility in the maximum principal amount of Twenty Million Dollars ($20,000,000). The facility contemplated by the Hercules Loan Agreement shall be referred to herein as the “Hercules Loan”.

 

 

B. The Ally Parties and RMBL Missouri are parties to that certain Inventory Financing and Security Agreement, dated as of February 16, 2018 (as the same has been and may be further amended, modified, restated, replaced, or supplemented from time to time pursuant to the terms herein, the “Ally Financing Agreement”), whereby the Ally Parties have agreed to make available to RMBL Missouri a secured loan facility up to an aggregate principal amount of Twenty-Five Million Dollars ($25,000,000). The facility contemplated by the Ally Financing Agreement shall be referred to herein as the “Ally Loan”.

 

C. All of the obligations and indebtedness of Borrower to Hercules under the Hercules Loan Documents are secured by the Hercules Collateral and all of the obligations and indebtedness of Borrower to the Ally Parties under the Ally Financing Documents are secured by the Ally Collateral, each as defined below.

 

D. Hercules and the Ally Parties desire to set forth in this Agreement their respective rights and obligations with respect to the Collateral, as defined below.

 

 

 

1.1 Definitions. As used in this Agreement, the following terms shall have the following definitions:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2.1 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.

 

2.2 Limitation on Further Loans. After the date hereof, except pursuant to the Ally Financing Agreement and subject to the Ally Debt Cap, the Ally Parties may not make loans to or otherwise extend credit to Borrower without notice to and the consent of Hercules.

 

2.3 Transfer of Interest in Loans. Any sale or transfer of an interest in this Agreement and the Loan Documents shall be voidable at the option of any other Lender unless the following provisions are satisfied:

 

(a) Consent. Each of Hercules and the Ally Parties agree that each of them will not transfer any of its interest in its Loan Documents or its Loan without first delivering a copy of this Agreement to the proposed transferee or assignee, and obtaining the acknowledgment of the proposed transferee or assignee that the transfer or assignment is subject to all of the terms of this Agreement; provided, however, each Lender may sell to any other financial entity participation interests in such Lender’s rights under this Agreement and its respective Loan Documents, provided that notwithstanding the sale of participations, such Lender shall remain solely responsible for the performance of its obligations under this Agreement and its applicable Loan Documents, and the other Lender shall continue to deal solely and directly with such Lender in connection with this Agreement and its Loan Documents unless otherwise agreed to in writing by each Lender.

 

(b) Assumption of Obligations. The transferee shall assume all obligations of the transferring Lender with respect to the portion of the transferor’s interest under this Agreement and the applicable Loan Documents; provided that to the extent the transferor shall not transfer the entirety and shall retain any portion of its interest in its Loan Document, the transferor shall retain its obligations under this Agreement, its Loan Agreement and its other applicable Loan Documents with respect to that portion of its interest.

 

2.4 Bailee for Perfection. Each Lender hereby appoints the other Lender as agent for the purposes of perfecting its Liens in and on any of its Collateral in the possession or under the control of such other Lender; provided, that, a Lender in possession or having control of any Collateral shall not have any duty or liability to protect or preserve any rights pertaining to any of the other Lender’s Collateral and, except for gross negligence or willful misconduct as determined pursuant to a final non-appealable order of a court of competent jurisdiction, the non-possessing and/or non-controlling Lender hereby waives and releases the other Lender from all claims and liabilities arising pursuant to the possessing Lender’s role as bailee with respect to such Collateral, so long as the possessing and/or controlling Lender shall use the same degree of care with respect thereto as the possessing and/or controlling Lender uses for similar property pledged to the possessing and/or controlling Lender as collateral for indebtedness of others to the possessing and/or controlling Lender.

 

2.5 Insolvency Proceeding. In any Insolvency Proceeding, the Collateral of each Lender shall include applicable Collateral acquired by Borrower, or arising, after the commencement of the Insolvency Proceeding, and this Agreement shall continue to apply during any such Insolvency Proceeding.

 

 

3.1 Exercise of Remedies by Hercules. Notwithstanding anything to the contrary contained in this Agreement or in the Hercules Loan Agreement, upon the occurrence of an Event of Default, Hercules shall be free at all times to exercise or to refrain from exercising any and all rights and remedies it may have with respect to the Hercules Priority Collateral under the Hercules Loan Documents or under applicable law (and continue to receive regularly scheduled payments or any prepayment of the Hercules Loans pursuant to the terms therein). In no event shall Hercules take any Enforcement Action against any Collateral then constituting Ally Priority Collateral without the prior written consent of the Ally Parties, provided that with respect to Ally Priority Collateral consisting of cash Proceeds maintained in Deposit Accounts or Investment Accounts subject to an Account Control Agreement in favor of Hercules, Hercules may give notice of exclusive control with respect to such Deposit Account or Investment Account and, if required pursuant to the terms of such Account Control Agreement cause the transfer of funds or assets therefrom pending determination which portion thereof constitutes Ally Priority Collateral, provided further that amounts constituting Ally Priority Collateral shall be received by Hercules in trust for and shall be promptly paid over to the Ally Parties for application to the payments of amounts due in respect of the Claims of the Ally Parties until such Claims are paid in full, subject to the Ally Debt Cap.

 

3.2 Exercise of Remedies by Ally. Notwithstanding anything to the contrary contained in this Agreement or in the Ally Financing Agreement, upon the occurrence of an Event of Default, the Ally Parties shall be free at all times to exercise or to refrain from exercising any and all rights and remedies it may have with respect to the Ally Priority Collateral under the Ally Financing Documents or under applicable law (and continue to receive regularly scheduled payments or any prepayment of the Ally Loans pursuant to the terms therein). In no event shall any one of the Ally Parties take any Enforcement Action against any Collateral then constituting Hercules Priority Collateral without the prior written consent of Hercules.

 

3.3 Application of Proceeds of Collection of Ally Priority Collateral after an Event of Default. Notwithstanding anything to the contrary in the Loan Documents, as among the Lenders, the Proceeds of Collection of all Collateral then constituting Ally Priority Collateral, determined as of the date of the occurrence of an Event of Default, shall upon receipt by either Lender, after the occurrence and during the continuation of an Event of Default be paid to and applied as follows:

 

(a) First, to the payment of then outstanding reasonable out-of-pocket costs and expenses of the Ally Parties (i) expended to preserve the value of the Ally Priority Collateral, (ii) of foreclosure or suit with respect to Ally Priority Collateral, if any, and (iii) of such sale, foreclosure or suit with respect to the Ally Priority Collateral;

(b) Second, to the Ally Parties in an amount up to the Ally Debt Cap to be applied to the Claims of the Ally Parties;

(c) Third, to Hercules in an amount up to Hercules’s Claims until all such Claims are satisfied in full;

(d) Fourth, to the Ally Parties in an amount up to the Ally Parties’ Claims until all such Claims are satisfied in full; and

(e) Fifth, to Borrowers or whomsoever may be lawfully entitled to receive the same.

 

3.4 Application of Proceeds of Collection of Hercules Priority Collateral after an Event of Default. Notwithstanding anything to the contrary in the Loan Documents, as among the Lenders, the Proceeds of Collection of all Collateral then constituting Hercules Priority Collateral shall upon receipt by either Lender, after the occurrence of an Event of Default be paid to and applied as follows:

 

(a) First, to the payment of then outstanding reasonable out-of-pocket costs and expenses of Hercules’s (i) expended to preserve the value of the Hercules Priority Collateral, (ii) of foreclosure or suit with respect to Hercules Priority Collateral, if any, and (iii) of such sale, foreclosure or suit with respect to the Hercules Priority Collateral;

 

(b) Second, to Hercules in an amount up to Hercules’s Claims until all such Claims are satisfied in full;

 

(c) Third, to the Ally Parties in an amount up to the Claims of the Ally Parties until all such Claims are satisfied in full; and

 

(d) Fourth, to Borrowers or whomsoever may be lawfully entitled to receive the same.

 

3.5 Insurance. In the event of any loss affecting any Collateral, the Lender having a senior Lien in the affected Collateral under this Agreement shall, subject to Borrower’s rights under the applicable Loan Documents, have the sole and exclusive right (but not the obligation) to adjust settlement of any insurance policy applicable to such Collateral. All Proceeds of insurance applicable to the affected Collateral shall (subject to Borrower’s rights under the applicable Loan Documents) be applied in the same manner set forth in Sections 3.3 and 3.4 with respect to such Collateral itself and other Proceeds thereof.

 

3.6 Insolvency Events. In the event of any Insolvency Event, then, and in any such event, and subject to any subordination arrangements to which the Lenders may be subject, (a) all payments and distributions of any kind or character, whether in cash or property or securities in respect of the Lenders’ Claims shall be distributed pursuant to the provisions of Sections 2.1, 3.3 and 3.4 hereof; (b) each Lender shall promptly file a claim or claims, on the form required in such proceeding, for the full outstanding amount of such Lender’s Claim, and shall use its commercially reasonable efforts to cause said claim or claims to be approved; (c) each of the Lenders hereby irrevocably agrees that, to the extent that it fails timely to do so (a “Non-filing Lender”), the other Lender may in the name of the Non-filing Lender, or otherwise, file and prove up any and all claims of the Non-filing Lender relating to the Non-filing Lender’s Claim; (d) in the event that, notwithstanding the foregoing, but subject to the provisions of Sections 2.1, 3.3 and 3.4, any payment or distribution of any kind or character, whether in cash, properties or securities, shall be received by a Lender in excess of the amount agreed to herein, then the portion of such payment or distribution in excess of such Lender’s permitted amount shall be received by such Lender in trust for and shall be promptly paid over to the other Lender for application to the payments of amounts due on the other Lender’s Claims; and (e) each of the Lenders hereby irrevocably agrees that neither Lender shall assert or otherwise approve, without the prior written consent of the other Lender, any claim, motion, objection or argument in respect of the other Lender’s Collateral in connection with any Insolvency Proceeding which could otherwise be asserted or raised in connection with such Insolvency Proceeding (including, without limitation, any claim, motion, objection or argument seeking adequate protection or relief from the automatic stay in respect of such Collateral), that is otherwise inconsistent with the terms of this Agreement. The Ally Parties will not object to Hercules providing debtor in possession financing, provided that such debtor in possession financing does not vary the relative priority of the Claims of the Ally Parties or adversely affect the Ally Parties’ Lien on the Ally Priority Collateral. Each Lender agrees that if an Insolvency Event occurs, such Lender will not seek relief from automatic stay with respect to the other Lender’s Priority Collateral or oppose a request by the other Lender for relief from the automatic stay with respect to the other Lender’s Priority Collateral.

 

3.7 Return of Payments. To the extent any payment for the account of Borrower is required to be returned as a voidable transfer or otherwise, the Lenders shall contribute to one another as is necessary to ensure that such return of payment is in accordance with the terms of this Agreement.

 

3.8 Foreclosure.

 

(a) Credit Bid By Lenders.  Hercules agrees that the Ally Parties shall have the right to credit bid under Section 363(k) of the Bankruptcy Code with respect to, or otherwise object to any such sale or other disposition of, the Ally Priority Collateral and the Ally Parties agree that Hercules shall have the right to credit bid under Section 363(k) of the Bankruptcy Code with respect to, or otherwise object to any such sale or other disposition of, the Hercules Priority Collateral; provided, however, that the Ally Parties shall not be deemed to have agreed to any “credit bid” by Hercules in connection with the sale or other disposition of Collateral which includes Collateral then constituting Ally Priority Collateral, and Hercules shall not be deemed to have agreed to any “credit bid” by the Ally Parties in connection with the sale or other disposition of Collateral which includes Collateral then constituting Hercules Priority Collateral.

 

(b) Cash Bid for Account of One Lender.  No Lender shall make or cause to be made a cash bid at any foreclosure sale or other sale of any of the Collateral without the prior written consent of the other Lender, unless the Proceeds of the amount of such bid after allocation in accordance with Section 3.3 or 3.4, as applicable, will be equal to or in excess of the amount of the other Lender’s Claims, as demonstrated by calculations satisfactory to such other Lender.  If a cash bid is made and is successful, then (i) the Proceeds of the sale shall be allocated as set forth in Section 3.3 or 3.4 as applicable, and (ii) the Lender that entered the successful bid shall acquire the Collateral so purchased for its own account, and the other Lender shall have no further interest in that Collateral upon the payment to such other Lender of the shares of the Proceeds in accordance with Section 3.3 or 3.4 as applicable.  The Proceeds allocated under the foregoing clause (i) shall be allocated between the Lenders pursuant to Sections 3.3 or 3.4 as applicable, according to the net book value (per Borrowers’ books) of their respective Priority Collateral which is a part of such Collateral (and Accounts shall be valued at face amount).

 

 

(a) Purchase Option Triggers. (i) At any time after acceleration of either Loan, (ii) at any time during an Event of Default, and (iii) at any time following the commencement of an Insolvency Proceeding, Hercules shall have the right, but not obligation, upon giving written notice to the Ally Parties, to acquire from the Ally Parties all (but not less than all) of the right, title, and interest of the Ally Parties in and to the Ally Loan and the Ally Financing Documents (a “Purchase Notice”).

 

(b) Consummation of Purchase. Upon the Ally Parties’ receipt of the Purchase Notice, Hercules irrevocably shall be committed to acquire from the Ally Parties, and the Ally Parties irrevocably shall be committed to sell to Hercules, all (but not less than all) of the aggregate amount of the Ally Loan and the right, title, and interest of the Ally Parties in and to the Ally Financing Documents (the “Purchase”), by paying to the Ally Parties, within ten (10) Business Days (the “Option Period”) following receipt of the Purchase Notice, in immediately available funds by Federal funds wire transfer, a purchase price (the “Purchase Price”) equal to: 100% of the outstanding balance with respect to the Ally Loan due thereunder (including, without limitation, principal, interest accrued and unpaid thereon and any unpaid fees and reasonable and documented expenses to the extent earned or due and payable in accordance with the Ally Financing Documents). The Ally Parties agree to provide customary loan sale documents (the “Purchase Documents”) to effectuate the Purchase within three (3) Business Days following receipt of the Purchase Notice and shall provide copies of all of the Ally Financing Documents then in effect. Upon execution and delivery of the Purchase Documents and payment of the Purchase Price, the Ally Parties (i) shall assign and deliver to Hercules the Ally Financing Documents, with appropriate assignment and endorsement, and any Collateral in its possession, and (ii) shall execute and deliver such other documents, instruments, and agreements reasonably necessary to effect such assignment. The Purchase shall be without any representation, recourse, or warranty, except that the Ally Parties shall represent and warrant to Hercules (i) the amount of principal, interest and fees owed to the Ally Parties on the closing date of the Purchase, (ii) that none of the Ally Parties has assigned or encumbered its rights in the Ally Loan or the Ally Financing Documents, (iii) that the Ally Financing Documents, as provided by the Ally Parties are the complete and correct forms thereof, and (iv) that each of the Ally Parties owns and has the unrestricted right to transfer to Hercules all right, title, and interest with respect to the Ally Financing Documents at no expense or charge to Hercules other than payment of the Purchase Price. In the event the Ally Parties do not timely comply with the respective obligations set forth above, the Option Period shall be extended, provided that the foregoing shall not constitute a waiver by Hercules for any other remedies it may have in law or equity for failure by the Ally Parties to timely comply with their respective obligations. Upon receipt of the Purchase Notice, the Ally Parties shall cease and refrain from exercising any Enforcement Actions until the expiration of the Option Period.

 

 

5.1 Exculpation. In connection with any exercise of Enforcement Actions hereunder, no Lender or any of its partners, or any of their respective directors, officers, employees, attorneys, accountants, or agents shall be liable as such to any other Lender for any action taken or omitted by it or them, except with respect to any violation of this Agreement or any gross negligence or willful misconduct.

 

5.2 Delegation of Duties. Each Lender may execute any of its powers and perform any duties hereunder either directly or by or through agents or attorneys-in-fact. Each Lender shall be entitled to advice of counsel concerning all matters pertaining to such powers and duties.

 

 

 

 

 

 

8.1 Due Organization and Qualification. Each Lender represents and warrants to the other parties that it is a corporation or other entity duly existing and in good standing under the laws of its state of organization and it is qualified and licensed to do business in, and is in good standing in, any state in which the conduct of its business or its ownership of property requires that it be so qualified, except for such states as to which any failure so to qualify would not have a material adverse effect on such Lender.

 

8.2 Authority. Each Lender represents and warrants that it has all necessary power and authority to execute, deliver and perform this Agreement in accordance with the terms hereof and that it has all requisite power and authority to own and operate its properties and to carry on its business as now conducted.

 

8.3 Authorization; Enforceability. Each Lender represents and warrants that (a) the execution and delivery of this Agreement and the consummation of the transactions contemplated herein have each been duly authorized by all necessary action on its part, and (b) this Agreement has been duly executed and delivered and constitutes a legal, valid and binding obligation of such person, enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws of general application relating to or affecting the enforcement of creditors’ rights or by general principles of equity.

 

8.4 Copies of Documents. Each Lender represents and warrants that it has provided the other with true and complete copies of its Loan Documents in effect as of the date of this Agreement.

 

 

(a) Unless otherwise provided in this Agreement, all notices or demands by any party relating to this Agreement or any other agreement entered into in connection herewith shall be in writing and (except informal documents which may be sent by email) shall be deemed to have been validly served, given, delivered and received upon the earlier of (i) the day of hand delivery or delivery by an overnight express service or overnight mail delivery service; or (ii) the third calendar day after deposit in the United States of America mails, with proper first class postage prepaid, return receipt requested in each case, addressed to the party to be notified as follows:

 

If to Hercules:	Hercules Capital, Inc., as agent Attn: Chief Legal Officer and Tom Harris 400 Hamilton Ave. Suite #310 Palo Alto, CA 94301 Email: ***@***; ***@***
If to the Ally Parties:	Ally Bank and Ally Financial Inc. Attn: Sheldon Nicklin, Executive Risk Director 3200 Bristol Street, Suite 700 Costa Mesa, California 92626 Email: ***@***

 

 

(b) Each Lender agrees to provide the other Lender with (i) copies of any notice of demand, or similar communication as and when given to a Borrower or any co-borrower or guarantor with respect to a Loan, (ii) as and when received, given, or executed, a copy of any amendment, modification, waiver (including waiver of any Event of Default), replacement or supplement of the Loan Documents, (iii) notice of any intent to sell or transfer all or any part of its right, title and interest in the Loan Documents to any third party (other than a controlled affiliate of such Lender or a successor in interest through merger) at least ten (10) Business Days prior to consummating such sale or transfer.

 

 

 

 

(a) The Ally Parties acknowledge and consent to (i) the Hercules Loan Documents, (ii) the grant by Borrowers of a Lien on the Hercules Collateral, and (iii) only prior to the occurrence of an Event of Default, the transfer from RMBL Missouri to Parent, in the ordinary course of Borrowers’ business, of any cash Proceeds from the sale of an Ally Financed Vehicle provided the Ally Parties have been paid in full for the outstanding balance of any advance associated with such Ally Financed Vehicle.

 

(b) Notwithstanding Section 12.1, the Ally Parties shall not amend the Ally Financing Documents, without prior written consent of Hercules, to (i) increase the interest rate by more than 3.0 percentage points (excluding increases resulting from (A) increases in the underlying reference rate not caused by an amendment of the Ally Financing Documents, or (B) the accrual of interest at the default rate), or (ii) increase the Ally Credit Balance required to be provided to be in excess of 10% of the approved credit line under the Ally Financing Documents.

 

 

12.1 Lenders’ Rights. Hercules, on the one hand, and the Ally Parties on the other hand, agree that each Lender may at any time, and from time to time, without the consent of the other Lender and without notice to the other Lender: (i) renew or extend any of Borrower’s indebtedness and obligations owing to such Lender or that of any other person at any time directly or indirectly liable for the payment thereof; (ii) accept partial payments of its Claims; (iii) settle, release (by operation of law or otherwise), compromise, collect or liquidate any of its Claims; (iv) release, exchange, fail to perfect, delay the perfection of, fail to resort to, or realize upon Collateral then constituting its Priority Collateral; (v) change, alter or vary the interest charge on, or any other terms or provisions of its Claims or any present or future instrument, document or agreement with any Borrower; and (vi) take any other action or omit to take any other action with respect to its Claims as it deems necessary or advisable in its sole discretion; subject, however, in all cases, to the specific provisions of this Agreement. Each Lender waives any right to require the other Lender to proceed first against some Collateral before proceeding against other Collateral, or to exercise certain remedies before exercising other remedies, whether under the equitable doctrine of marshalling or otherwise, but subject, in all cases, to the provisions of this Agreement.

 

12.2 Non-Avoidability. The subordinations and priorities specified in this Agreement are expressly conditioned upon the nonavoidability and perfection of the security interest to which another security interest is subordinated, and if the security interest to which another security interest is subordinated is not perfected or is avoidable, for any reason, then the subordinations and relative priority provided for in this Agreement shall not be effective as to the particular Collateral that is the subject of the unperfected or avoidable security interest.

 

12.3 Successors and Assigns. This Agreement shall bind and inure to the benefit of the respective successors and permitted assigns of each of the Ally Parties and Hercules; provided, however, that neither this Agreement nor any rights hereunder may be assigned, transferred or participated by any of the parties hereto without being in compliance with Section 2.3, and subject to Section 4.

 

12.4 Severability of Provisions. Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.

 

12.5 Entire Agreement; Construction; Amendments and Waivers.

 

(a) This Agreement constitutes and contains the entire agreement among the Lenders, and supersedes any and all prior agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, respecting the subject matter hereof.

 

(b) This Agreement is the result of negotiations between and has been reviewed by each of the Lenders executing this Agreement as of the date hereof and their respective counsel; accordingly, this Agreement shall be deemed to be the product of the parties hereto, and no ambiguity shall be construed in favor of or against any party. Lenders agree that they intend the literal words of this Agreement and that no parole evidence shall be necessary or appropriate to establish any of their actual intentions.

 

(c) Any and all amendments, modifications, discharges or waivers of, or consents to any departures from any provision of this Agreement shall not be effective without the written consent of each Lender. Any waiver or consent with respect to any provision of this Agreement shall be effective only in the specific instance and for the specific purpose for which it was given. Any amendment, modification, waiver or consent effected in accordance with this Section 12.5(c) shall be binding upon each Lender.

 

12.6 Counterparts. This Agreement may be executed in any number of counterparts, including counterparts transmitted by facsimile or other means of electronic transmission, and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Agreement.

 

12.7 Termination. This Agreement shall terminate upon the later of (a) irrevocable payment in full to each Lender of all amounts (other than unasserted amounts in connection with obligations that specifically survive termination of the applicable Loan Documents) owing to it under the applicable Loan Documents, and (b) the termination of all obligations to lend thereunder.

 

12.8 Reinstatement. Notwithstanding any provision of this Agreement to the contrary, the rights and obligations of the parties hereunder shall be reinstated and revived if and to the extent that for any reason any payment by or on behalf of Borrower is rescinded, or must be otherwise restored by Lenders, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, all as though such amount had not been paid. To the extent any payment is rescinded or restored, the obligations shall be revived in full force and effect without reduction or discharge for that payment.

 

12.9 Survival. All covenants, representations and warranties made in this Agreement shall continue in full force and effect so long as any obligations remain outstanding hereunder.