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EFTA01358962

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Page 30 874 F.3d 787, *; 2017 U.S. App. LEXIS 20596, "; Bankr. L. Rep. (CCH) P83,176; 64 Bankr. Ct. Dec. 216 The Subordinated Notes holders argue that the Fourth Proviso carves out the Second-Lien Notes from the Baseline Definition, i.e., that the Second-Lien Notes are an "[i]ndebtedness or obligation of the Company . . . that by its terms is subordinate or junior in any respect to any other Indebtedness of the Company." The Subordinated Notes holders rely heavily on the "in r13] any respect" language. They argue that the Second-Lien Notes are subordinate to, for example, the First-Lien Notes--because, pursuant to the Intercreditor Agreement, the liens supporting the Second-Lien Notes are junior to the liens supporting the First-Lien Notes—and that they are therefore subordinate to other Indebtedness of the company. The lower courts rejected this argument, and concluded that the Second-Lien Notes unambiguously constitute Senior Indebtedness despite the Fourth Proviso. They did so in reliance on a distinction between "lien subordination" and "payment (or debt) subordination," concluding that the Fourth Proviso unambiguously carves out from the Baseline Definition only the latter and not the former.° Because the Second-Lien Notes are not subordinate in payment to other note classes--but rather, the liens supporting their notes are subordinate—the lower courts concluded that the Second-Lien Notes are not covered by the Fourth Proviso. 5 The district court discussed in some detail the distinction between lien subordination and paymert/debt subordination. 531 B.R. at 328. In short. ll)en subordination involves two senior creditors with security interests in the same collateral, one of which has lien priority over the other. . . . By contrast, in payment subordination, the senior lender enjoys the right to be paid first from all assets of the borrower or any applicable guarantor, whether or not constituting collateral security for the senior or sub

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