Lien Subordination. (a) Notwithstanding the respective dates of attachment or perfection of the security interests of CR and the security interests of [ ], or any contrary provision of the UCC, or any applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [ ] or CR holds possession of all or any part of the Collateral, (i) all now existing and hereafter arising security interests of [ ] in any [ ] Senior Collateral shall at all times be senior to the security interests of CR in such [ ] Senior Collateral, and (ii) all now existing and hereafter arising security interests of CR in any CR Senior Collateral shall at all times be senior to the security interests of [ ] in such CR Senior Collateral. (b) Each Creditor hereby: (i) acknowledges and consents to (A) Borrower granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) Borrower’s entry into the Credit Documents to which the other Creditor is a party; (ii) acknowledges and agrees that the other Creditor’s Claims, the Borrower’s entry into the Credit Documents with the other Creditor, and the security interests in the Common Collateral granted by Borrower to the other Creditor shall be permitted under such Creditor’s Credit Documents, notwithstanding any provision of such Creditor’s Credit Documents to the contrary; and (iii) acknowledges, agrees and covenants, notwithstanding Section 2(c), that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. (c) Subject to Section 2(b)(iii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the parties hereto.
Appears in 3 contracts
Samples: Term Loan Agreement (Exagen Diagnostics Inc), Term Loan Agreement (Exagen Diagnostics Inc), Term Loan Agreement (Exagen Diagnostics Inc)
Lien Subordination. (a) Notwithstanding the respective dates of attachment or perfection of the security interests of CR CRG and the security interests of [ [A/R Lender], or any contrary provision of the UCC, or any applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [ [A/R Lender] or CR CRG holds possession of all or any part of the Collateral, (i) all now existing and hereafter arising security interests of [ [A/R Lender] in any [ ] A/R Facility Senior Collateral shall at all times be senior to the security interests of CR CRG in such [ ] A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CR CRG in any CR CRG Senior Collateral shall at all times be senior to the security interests of [ [A/R Lender] in such CR CRG Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) Borrower [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) Borrower’s [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party;.
(ii) acknowledges and agrees that the other Creditor’s Claims, the Borrower’s entry into the Credit Documents with the other Creditor, and the security interests in the Common Collateral granted by Borrower to the other Creditor shall be permitted under such Creditor’s Credit Documents, notwithstanding any provision of such Creditor’s Credit Documents to the contrary; and
(iii) acknowledges, agrees and covenants, notwithstanding Section 2(c)) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(iii2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the parties hereto.
Appears in 3 contracts
Samples: Term Loan Agreement (ViewRay, Inc.), Term Loan Agreement (ViewRay, Inc.), Term Loan Agreement (ViewRay, Inc.)
Lien Subordination. (a) Notwithstanding the respective dates of attachment or perfection of the security interests of CR CRG Creditors and the security interests of [ [A/R Lender], or any contrary provision of the UCC, or any applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [ [A/R Lender] or CR any CRG Creditor holds possession of all or any part of the Collateral, (i) all now existing and hereafter arising security interests of [ [A/R Lender] in any [ ] A/R Facility Senior Collateral shall at all times be senior to the security interests of CR CRG Creditors in such [ ] A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CR CRG Creditors in any CR CRG Senior Collateral shall at all times be senior to any interests, including the security interests of [ [A/R Lender] in such CR CRG Senior Collateral. Notwithstanding the foregoing, [A/R Lender] agrees and acknowledges that it shall not receive, and [neither Borrower nor any Obligor shall grant][Borrower shall not grant], any security interest to [A/R Lender] in the CRG Senior Collateral.
(b) Each Creditor herebyof [A/R Lender] and CRG Agent, on behalf of CRG Creditors:
(i) acknowledges and consents to (A) Borrower [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) Borrower’s [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party;.
(ii) acknowledges and agrees that the other Creditor’s Claims, the Borrower’s entry into the Credit Documents with the other Creditor, and the security interests in the Common Collateral granted by Borrower to the other Creditor shall be permitted under such Creditor’s Credit Documents, notwithstanding any provision of such Creditor’s Credit Documents to the contrary; and
(iii) acknowledges, agrees and covenants, notwithstanding Section 2(c)) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(iii2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the parties hereto.
Appears in 2 contracts
Samples: Term Loan Agreement (T2 Biosystems, Inc.), Term Loan Agreement (Omeros Corp)
Lien Subordination. (a) Notwithstanding The Trustee and each Holder acknowledge that, as more fully set forth in the respective dates of attachment or perfection Collateral Documents and the Intercreditor Agreement, the rights of the security interests Holders (and of CR the Trustee on their behalf) to receive proceeds from the disposition of the Collateral is subordinated to the rights of holders of Senior Debt to receive proceeds from the disposition of Collateral and is pari passu with the rights of the Holders of the 8% Notes and the security interests rights of [ ], or any contrary provision holders of Senior Subordinated Debt to receive proceeds from the UCC, or any applicable law or decision, or the provisions disposition of the Credit Documents, and irrespective of whether [ ] or CR holds possession of all or any part of the Collateral, (i) all now existing and hereafter arising security interests of [ ] in any [ ] Senior Collateral shall at all times be senior to the security interests of CR in such [ ] Senior Collateral, and (ii) all now existing and hereafter arising security interests of CR in any CR Senior Collateral shall at all times be senior to the security interests of [ ] in such CR Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges The priorities set forth in this Section 4.6 and consents to (A) Borrower granting to the other Creditor a security interest in the Common Collateral Intercreditor Agreement are applicable irrespective of such other Creditorthe order of creation, (B) the other Creditor filing attachment or perfection of any and all financing statements and other documents as deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) Borrower’s entry into the Credit Documents to which the other Creditor is a party;
(ii) acknowledges and agrees that the other Creditor’s Claims, the Borrower’s entry into the Credit Documents with the other Creditor, and the Liens or security interests in or any priority that might otherwise be available to any Secured Creditor under the Common Collateral granted by Borrower to the other Creditor shall be permitted under such Creditor’s Credit Documents, notwithstanding any provision of such Creditor’s Credit Documents to the contrary; and
(iii) acknowledges, agrees and covenants, notwithstanding Section 2(c), that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claimapplicable law.
(c) Subject to Section 2(b)(iii), the The priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing set forth in this Section 2(c) affects 4.6 and in the operation Intercreditor Agreement shall be as set forth herein notwithstanding any defects in connection with the creation, perfection or priority of any turnover of payment provisions hereofthe Security Interests. The Trustee and each Holder, by accepting a Security, agree not to contest, or to bring (or voluntarily join in) any action or proceeding for the purpose of contesting the validity, perfection or priority (as herein provided) of, or seeking to avoid, any other agreements among Security Interests, and provided further, that nothing herein shall be deemed or construed to prevent the Minimum Payment Guarantor or any Bank Lender from commencing an action or proceeding to assert any right or claim it may have arising under or in connection with any Collateral Documents.
(d) To the extent the priorities set forth in this Section 4.6 are inconsistent with the Intercreditor Agreement, the terms of the parties heretoIntercreditor Agreement shall control.
Appears in 2 contracts
Samples: Indenture (Jazz Casino Co LLC), Indenture (Jazz Casino Co LLC)
Lien Subordination. (a) In order to secure all of Contractor’s obligations owed to United pursuant to this Agreement (including without limitation the timely payment by Contractor of all payment and reimbursement obligations to United hereunder and any damages incurred by United (including without limitation pursuant to Article VIII) in any case where United is entitled to recover damages pursuant to applicable law as a result of the default by Contractor of its obligations hereunder), Contractor hereby grants to United a security interest of first priority (subject only to liens that arise by operation of applicable law and except as provided below) in the following (the “E175 Lien”): any and all of Contractor’s right, title and interest in all appliances, accessories and other equipment or property installed in or on the E175 Covered Aircraft (including all replacements of the foregoing), any equipment stored at United facilities, any contractual rights or general intangibles material to the operation or ownership or otherwise related to the E175 Covered Aircraft or amounts payable to Contractor with respect to damage or casualty to the E175 Covered Aircraft and all proceeds of the foregoing and any accounts containing such proceeds (collectively, the “E175 Collateral”); provided that the E175 Lien shall be junior and subordinate to any purchase money security interest in favor of one or more lenders (which lenders are not affiliates of Contractor) (each, a “PMSI Lender”) arising from the provision by such lender(s) to Contractor of purchase money financing used to acquire any portion of the E175 Collateral. Contractor agrees, subject to the subordination provision set forth in this Section 10.6, that United shall have all the rights, powers and remedies of a secured party available under applicable law following any such default by Contractor, including but not limited to, the right to take possession of and sell in one or more transactions (whether by foreclosure, power of sale, or otherwise) the E175 Collateral or any part thereof; provided further that the E175 Collateral shall not include any property owned by United or not owned by Contractor or its affiliates. Contractor further agrees that United shall be entitled from time to time to file such Uniform Commercial Code (“UCC”) financing statements and continuation statements with respect to the E175 Collateral and take such other actions as it deems necessary or appropriate in connection with the perfection and maintenance of such security interest, and Contractor hereby consents to the filing of all such UCC financing statements and continuation statements. Contractor represents and warrants to United that Contractor’s current location (within the meaning of Section 9-307 of the UCC) is the State of Arizona. Contractor agrees that it will give United timely written notice (but in any event not later than thirty (30) days prior to the expiration of the period of time specified under applicable law to prevent lapse of perfection) of any change of its location (as such term is used in Section 9-307 of the UCC) from its then present location and will promptly take any action reasonably requested by United to continue the perfection of the E175 Lien on the E175 Collateral granted hereunder in favor of United.
(b) In order to secure all of Contractor’s obligations owed to United pursuant to this Agreement (including without limitation the timely payment by Contractor of all payment and reimbursement obligations to United hereunder and any damages incurred by United (including without limitation pursuant to Article VIII) in any case where United is entitled to recover damages pursuant to applicable law as a result of the default by Contractor of its obligations hereunder), Contractor hereby grants to United a security interest (subject only to liens that arise by operation of applicable law and except as provided below) in the following (the “CRJ Lien”): the CRJ Covered Aircraft owned by Contractor or its affiliates, all appliances, accessories and other equipment or property installed in or on the CRJ Covered Aircraft owned by Contractor or its affiliates (including all replacements of the foregoing), any equipment stored at United facilities, any contractual rights or general intangibles material to the operation or ownership or otherwise related to the CRJ Covered Aircraft owned by Contractor or its affiliates or amounts payable to Contractor with respect to damage or casualty to the CRJ Covered Aircraft owned by Contractor or its affiliates and all proceeds of the foregoing and any accounts containing such proceeds (collectively, the “CRJ Collateral”); provided that the CRJ Lien shall in all respects be junior and subordinate to any and all security interests and/or liens in effect as of the Effective Date in or on all or any portion of the CRJ Collateral, and to any and all security interests and/or liens on all or any portion of the CRJ Collateral in effect at any time subsequent to the Effective Date and held by or in favor of any lender of any senior debt obligation of Contractor or its affiliates, which lender is not an affiliate of Contractor (hereinafter, a “Senior Lender”). Contractor agrees that, subject to the subordination provisions set forth in this Section 10.6, United shall have all the rights, powers and remedies of a secured party available under applicable law following any such default by Contractor, including but not limited to, the right to take possession of and sell in one or more transactions (whether by foreclosure, power of sale, or otherwise) the CRJ Collateral or any part thereof; provided further that the CRJ Collateral shall not include any property owned by United or not owned by Contractor or its affiliates. Contractor further agrees that United shall be entitled from time to time to file such UCC financing statements and continuation statements with respect to the CRJ Collateral and take such other actions as it deems necessary or appropriate in connection with the perfection and maintenance of such security interest, and Contractor hereby consents to the filing of all such UCC financing statements and continuation statements. Contractor represents and warrants to United that Contractor’s current location (within the meaning of Section 9-307 of the UCC) is the State of Arizona. Contractor agrees that it will give United timely written notice (but in any event not later than thirty (30) days prior to the expiration of the period of time specified under applicable law to prevent lapse of perfection) of any change of its location (as such term is used in Section 9-307 of the UCC) from its then present location and will promptly take any action reasonably requested by United to continue the perfection of the CRJ Lien on the CRJ Collateral granted hereunder in favor of United.
(c) Contractor hereby represents and warrants that (i) it has all requisite corporate power and authority to grant the E175 Lien and the CRJ Lien in the E175 Collateral and CRJ Collateral, respectively, and (ii) such grant does not breach or result in a default of any of Contractor’s contracts or agreements.
(d) Notwithstanding the respective dates date, manner or order of perfection or attachment or perfection of the security interests and liens granted by Contractor to United pursuant to this Section 10.6 or to any PMSI Lender or Senior Lender, and notwithstanding the usual application of CR and the security interests priority provisions of [ ], the UCC or any contrary provision of the UCC, or any other applicable law or judicial decision, or the provisions of the Credit Documents, and irrespective of whether [ ] a PMSI Lender or CR Senior Lender or United holds possession of all or any part of the E175 Collateral or CRJ Collateral, (i) all now existing and hereafter arising security interests of [ ] in any [ ] Senior Collateral shall at all times be senior to the security interests of CR in such [ ] Senior Collateral, and (ii) all now existing and hereafter arising security interests of CR in any CR Senior Collateral shall at all times be senior to the security interests of [ ] in such CR Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) Borrower granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) Borrower’s entry into the Credit Documents to which the other Creditor is a party;
(ii) United hereby acknowledges and agrees that such PMSI Lender or Senior Lender, as the other Creditor’s Claimscase may be, the Borrower’s entry into the Credit Documents with the other Creditor, shall have a first and the security interests in the Common Collateral granted by Borrower to the other Creditor shall be permitted under such Creditor’s Credit Documents, notwithstanding any provision of such Creditor’s Credit Documents to the contrary; and
(iii) acknowledges, agrees and covenants, notwithstanding Section 2(c), that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s prior continuing security interest in and lien on the Common E175 Collateral or CRJ Collateral, or the validityrespectively, priority or enforceability of the other Creditor’s Claim.
(c) Subject to Section 2(b)(iii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and United shall have not been avoided; if a security interest therein junior and subordinate in priority to the lien and security interest held by such PMSI Lender or lien is judicially determined Senior Lender, as the case may be. United hereby agrees to be unenforceable or unperfected or is judicially avoided with respect make such filings and recordings in the public records to one or more Claims or any part thereof, evidence the priorities provided for made herein shall not as may be available reasonably requested by Contractor at the request any PMSI Lender or Senior Lender, as the case may be, and, if required by any such PMSI Lender or Senior Lender, enter into a subordination agreement directly with such PMSI Lender or Senior Lender, as the case may be, in form and substance reasonably satisfactory to such security interest PMSI Lender or lien to Senior Lender for the extent that it is avoided or determined to be unenforceable. Nothing purpose of evidencing the subordination provisions set forth in this Section 2(c) affects 10.6. The provisions of this Section 10.6 are applicable regardless of whether the operation security interest and/or lien of any turnover of payment provisions hereofPMSI Lender or Senior Lender, as the case may be, in the E175 Collateral or of CRJ Collateral, respectively, is not perfected for any other agreements among any of the parties heretoreason.
Appears in 2 contracts
Samples: Capacity Purchase Agreement (Mesa Air Group Inc), Capacity Purchase Agreement (Mesa Air Group Inc)
Lien Subordination. (a) Notwithstanding the respective dates of attachment or perfection of the security interests of CR CRG Creditors and the security interests of [ ]A/R Lender, or any contrary provision of the UCC, or any applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [ ] A/R Lender or CR any CRG Creditor holds possession of all or any part of the Collateral, (i) all now existing and hereafter arising security interests of [ ] A/R Lender in any [ ] A/R Facility Senior Collateral shall at all times be senior to the security interests of CR CRG Creditors in such [ ] A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CR CRG Creditors in any CR CRG Senior Collateral shall at all times be senior to any interests, including the security interests of [ ] A/R Lender in such CR CRG Senior Collateral. Notwithstanding the foregoing, A/R Lender agrees and acknowledges that it shall not receive, and neither Borrower nor any Obligor shall grant, any security interest to A/R Lender in the CRG Senior Collateral.
(b) Each Creditor herebyof A/R Lender and CRG Agent, on behalf of CRG Creditors:
(i) acknowledges and consents to (A) Borrower granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) Borrower’s entry into the Credit Documents to which the other Creditor is a party;.
(ii) acknowledges and agrees that the other Creditor’s Claims, the Borrower’s entry into the Credit Documents with the other Creditor, and the security interests in the Common Collateral granted by Borrower to the other Creditor shall be permitted under such Creditor’s Credit Documents, notwithstanding any provision of such Creditor’s Credit Documents to the contrary; and
(iii) acknowledges, agrees and covenants, notwithstanding Section 2(c)) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, A/R Lender shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(iii2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the parties hereto.
Appears in 1 contract
Lien Subordination. (a) In order to secure all of Contractor’s obligations owed to United pursuant to this Agreement (including without limitation the timely payment by Contractor of all payment and reimbursement obligations to United hereunder and any damages incurred by United (including without limitation pursuant to Article VIII) in any case where United is entitled to recover damages pursuant to applicable law as a result of the default by Contractor of its obligations hereunder), Contractor hereby grants to United a security interest of first priority (subject only to liens that arise by operation of applicable law and except as provided below) in the following (the “E175 Lien”): any and all of Contractor’s right, title and interest in all appliances, accessories and other equipment or property installed in or on the E175 Covered Aircraft (including all replacements of the foregoing), any equipment stored at United facilities, any contractual rights or general intangibles material to the operation or ownership or otherwise related to the E175 Covered Aircraft or amounts payable to Contractor with respect to damage or casualty to the E175 Covered Aircraft and all proceeds of the foregoing and any accounts containing such proceeds (collectively, the “E175 Collateral”); provided that the E175 Lien shall be junior and subordinate to any purchase money security interest in favor of one or more lenders (which lenders are not affiliates of Contractor) (each, a “PMSI Lender”) arising from the provision by such lender(s) to Contractor of purchase money financing used to acquire any portion of the E175 Collateral. Contractor agrees, subject to the subordination provision set forth in this Section 10.6, that United shall have all the rights, powers and remedies of a secured party available under applicable law following any such default by Contractor, including but not limited to, the right to take possession of and sell in one or more transactions (whether by foreclosure, power of sale, or otherwise) the E175 Collateral or any part thereof; provided further that the E175 Collateral shall not include any property owned by United or not owned by Contractor or its affiliates. Contractor further agrees that United shall be entitled from time to time to file such Uniform Commercial Code (“UCC”) financing statements and continuation statements with respect to the E175 Collateral and take such other actions as it deems necessary or appropriate in connection with the perfection and maintenance of such security interest, and Contractor hereby consents to the filing of all such UCC financing statements and continuation statements. Contractor represents and warrants to United that Contractor’s current location (within the meaning of Section 9-307 of the UCC) is the State of Arizona. Contractor agrees that it will give United timely written notice (but in any event not later than thirty (30) days prior to the expiration of the period of time specified under applicable law to prevent lapse of perfection) of any change of its location (as such term is used in Section 9-307 of the UCC) from its then present location and will promptly take any action reasonably requested by United to continue the perfection of the E175 Lien on the E175 Collateral granted hereunder in favor of United; and provided, further, that no security interest shall be granted hereby in any property to the extent that such grant is prohibited by any agreement that comprises part of the EETC Transaction; and provided, further, that no security interest shall be granted hereby in any property to the extent that such grant is prohibited by any agreement that comprises part of a Secured Loan Transaction.
(b) In order to secure all of Contractor’s obligations owed to United pursuant to this Agreement (including without limitation the timely payment by Contractor of all payment and reimbursement obligations to United hereunder and any damages incurred by United (including without limitation pursuant to Article VIII) in any case where United is entitled to recover damages pursuant to applicable law as a result of the default by Contractor of its obligations hereunder), [***], accessories and other equipment or property installed in or on the CRJ Covered Aircraft owned by Contractor or its affiliates (including all replacements of the foregoing), any equipment stored at United facilities, any contractual rights or general intangibles material to the operation or ownership or otherwise related to the CRJ Covered Aircraft owned by Contractor or its affiliates or amounts payable to Contractor with respect to damage or casualty to the CRJ Covered Aircraft owned by Contractor or its affiliates and all proceeds of the foregoing and any accounts containing such proceeds (collectively, the “CRJ Collateral”); provided that the CRJ Lien shall in all respects be junior and subordinate to any and all security interests and/or liens in effect as of the Effective Date in or on all or any portion of the CRJ Collateral, and to any and all security interests and/or liens on all or any portion of the CRJ Collateral in effect at any time subsequent to the Effective Date and held by or in favor of any lender of any senior debt obligation of Contractor or its affiliates, which lender is not an affiliate of Contractor (hereinafter, a “Senior Lender”). Contractor agrees that, subject to the subordination provisions set forth in this Section 10.6, United shall have all the rights, powers and remedies of a secured party available under applicable law following any such default by Contractor, including but not limited to, the right to take possession of and sell in one or more transactions (whether by foreclosure, power of sale, or otherwise) the CRJ Collateral or any part thereof; provided further that the CRJ Collateral shall not include any property owned by United or not owned by Contractor or its affiliates. Contractor further agrees that United shall be entitled from time to time to file such UCC financing statements and continuation statements with respect to the CRJ Collateral and take such other actions as it deems necessary or appropriate in connection with the perfection and maintenance of such security interest, and Contractor hereby consents to the filing of all such UCC financing statements and continuation statements. Contractor represents and warrants to United that Contractor’s current location (within the meaning of Section 9-307 of the UCC) is the State of Arizona. Contractor agrees that it will give United timely written notice (but in any event not later than thirty (30) days prior to the expiration of the period of time specified under applicable law to prevent lapse of perfection) of any change of its location (as such term is used in Section 9-307 of the UCC) from its then present location and will promptly take any action reasonably requested by United to continue the perfection of the CRJ Lien on the CRJ Collateral granted hereunder in favor of United.
(c) Contractor hereby represents and warrants that (i) it has all requisite corporate power and authority to grant the E175 Lien and the CRJ Lien in the E175 Collateral and CRJ Collateral, respectively, and (ii) such grant does not breach or result in a default of any of Contractor’s contracts or agreements.
(d) Notwithstanding the respective dates date, manner or order of perfection or attachment or perfection of the security interests and liens granted by Contractor to United pursuant to this Section 10.6 or to any PMSI Lender or Senior Lender, and notwithstanding the usual application of CR and the security interests priority provisions of [ ], the UCC or any contrary provision of the UCC, or any other applicable law or judicial decision, or the provisions of the Credit Documents, and irrespective of whether [ ] a PMSI Lender or CR Senior Lender or United holds possession of all or any part of the E175 Collateral or CRJ Collateral, (i) all now existing and hereafter arising security interests of [ ] in any [ ] Senior Collateral shall at all times be senior to the security interests of CR in such [ ] Senior Collateral, and (ii) all now existing and hereafter arising security interests of CR in any CR Senior Collateral shall at all times be senior to the security interests of [ ] in such CR Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) Borrower granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) Borrower’s entry into the Credit Documents to which the other Creditor is a party;
(ii) United hereby acknowledges and agrees that such PMSI Lender or Senior Lender, as the other Creditor’s Claimscase may be, the Borrower’s entry into the Credit Documents with the other Creditor, shall have a first and the security interests in the Common Collateral granted by Borrower to the other Creditor shall be permitted under such Creditor’s Credit Documents, notwithstanding any provision of such Creditor’s Credit Documents to the contrary; and
(iii) acknowledges, agrees and covenants, notwithstanding Section 2(c), that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s prior continuing security interest in and lien on the Common E175 Collateral or CRJ Collateral, or the validityrespectively, priority or enforceability of the other Creditor’s Claim.
(c) Subject to Section 2(b)(iii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and United shall have not been avoided; if a security interest therein junior and subordinate in priority to the lien and security interest held by such PMSI Lender or lien is judicially determined Senior Lender, as the case may be. United hereby agrees to be unenforceable or unperfected or is judicially avoided with respect make such filings and recordings in the public records to one or more Claims or any part thereof, evidence the priorities provided for made herein shall not as may be available reasonably requested by Contractor at the request any PMSI Lender or Senior Lender, as the case may be, and, if required by any such PMSI Lender or Senior Lender, enter into a subordination agreement directly with such PMSI Lender or Senior Lender, as the case may be, in form and substance reasonably satisfactory to such security interest PMSI Lender or lien to Senior Lender for the extent that it is avoided or determined to be unenforceable. Nothing purpose of evidencing the subordination provisions set forth in this Section 2(c) affects 10.6. The provisions of this Section 10.6 are applicable regardless of whether the operation security interest and/or lien of any turnover of payment provisions hereofPMSI Lender or Senior Lender, as the case may be, in the E175 Collateral or of CRJ Collateral, respectively, is not perfected for any other agreements among any of the parties heretoreason.
Appears in 1 contract
Lien Subordination. (a) Notwithstanding The Trustee and each Holder acknowledge that, as more fully set forth in the respective dates of attachment or perfection Collateral Documents and the Intercreditor Agreement, the rights of the security interests of CR Holders (and the security interests of [ ], or any contrary provision of the UCC, or any applicable law or decision, or Trustee on their behalf) to receive proceeds from the provisions disposition of the Credit Documents, and irrespective of whether [ ] or CR holds possession of all or any part of the Collateral, (i) all now existing and hereafter arising security interests of [ ] in any [ ] Senior Collateral shall at all times be senior is subordinated to the security interests rights of CR in such [ ] holders of Senior Debt to receive proceeds from the disposition of Collateral, and (ii) all now existing is pari passu with the rights of the Holders of Contingent Notes and hereafter arising security interests the rights of CR in any CR holders of Senior Collateral shall at all times be senior Subordinated Debt to receive proceeds from the security interests disposition of [ ] in such CR Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) Borrower granting to the other Creditor a security interest The priorities set forth in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) Borrower’s entry into the Credit Documents to which the other Creditor is a party;
(ii) acknowledges and agrees that the other Creditor’s Claims, the Borrower’s entry into the Credit Documents with the other Creditor, this Section 4.6 and the Intercreditor Agreement are applicable irrespective of the order of creation, attachment or perfection of any Liens or security interests in or any priority that might otherwise be available to any Secured Creditor under the Common Collateral granted by Borrower to the other Creditor shall be permitted under such Creditor’s Credit Documents, notwithstanding any provision of such Creditor’s Credit Documents to the contrary; and
(iii) acknowledges, agrees and covenants, notwithstanding Section 2(c), that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claimapplicable law.
(c) Subject to Section 2(b)(iii), the The priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing set forth in this Section 2(c) affects 4.6 and in the operation Intercreditor Agreement shall be as set forth herein notwithstanding any defects in connection with the creation, perfection or priority of any turnover of payment provisions hereofthe Security Interests. The Trustee and each Holder, by accepting a Security, agree not to contest, or to bring (or voluntarily join in) any action or proceeding for the purpose of contesting the validity, perfection or priority (as herein provided) of, or seeking to avoid, any other agreements among Security Interests, and provided further, that nothing herein shall be deemed or construed to prevent the Minimum Payment Guarantor or any Bank Lender from commencing an action or proceeding to assert any right or claim it may have arising under or in connection with any Collateral Documents.
(d) To the extent the priorities set forth in this Section 4.6 are inconsistent with the Intercreditor Agreement, the terms of the parties heretoIntercreditor Agreement shall control.
Appears in 1 contract
Samples: Indenture (Jazz Casino Co LLC)
Lien Subordination. (a) Notwithstanding Bank Security Interests in the respective dates of attachment or perfection Collateral securing Senior Debt shall be senior and prior in right to the Security Interests. The Trustee and each Holder acknowledge that the rights of the security interests Bank Lenders in respect of CR Senior Debt to receive proceeds from the disposition of the Collateral is senior to the rights of the Holders to receive proceeds from the disposition of the Collateral. Bank Security Interests in the Collateral securing Senior Subordinated Debt are PARI PASSU with the Security Interests, and the security interests rights of [ ], or any contrary provision Bank Lenders in respect of Senior Subordinated Debt to receive proceeds from the disposition of the UCC, or any applicable law or decisionCollateral is PARI PASSU with the rights of the Holders, or the provisions Trustee on their behalf, to receive proceeds from the disposition of the Credit Documents, and irrespective of whether [ ] or CR holds possession of all or any part of the Collateral, (i) all now existing and hereafter arising security interests of [ ] in any [ ] Senior Collateral shall at all times be senior to the security interests of CR in such [ ] Senior Collateral, and (ii) all now existing and hereafter arising security interests of CR in any CR Senior Collateral shall at all times be senior to the security interests of [ ] in such CR Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) Borrower granting The priorities set forth in this Section 4.6 are applicable irrespective of the order of creation, attachment or perfection of any Liens or security interests or any priority that might otherwise be available to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) Borrower’s entry into the Credit Documents to which the other Creditor is a party;
(ii) acknowledges and agrees that the other Creditor’s ClaimsHolders, the Borrower’s entry into the Credit Documents with the other Creditor, and the security interests in the Common Collateral granted by Borrower to the other Creditor shall be permitted under such Creditor’s Credit Documents, notwithstanding any provision of such Creditor’s Credit Documents to the contrary; and
(iii) acknowledges, agrees and covenants, notwithstanding Section 2(c), that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common CollateralTrustee, or any Bank Lender under the validity, priority or enforceability of the other Creditor’s Claimapplicable law.
(c) Subject to The priorities set forth in this Section 2(b)(iii)4.6 are premised upon the assumption that the Bank Security Interests are duly and properly created and perfected and are not avoidable for any reason. Accordingly, the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests (but only for so long as) any Bank Security Interests are not duly and liens properly created and perfected or are enforceableavoidable for any reason, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, then the priorities subordinations provided for herein in this Section 4.6 shall not be available effective as to the particular Collateral subject to such security interest or lien Bank Security Interests; provided, however, that the Trustee and each Holder, by accepting a Security, agree not to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereofcontest, or to bring (or voluntarily join in) any action or proceeding for the purpose of contesting the validity, perfection or priority (as herein provided) of, or seeking to avoid, any other agreements among Bank Security Interests, and provided further, that nothing herein shall be deemed or construed to prevent any of the parties heretoBank Lender from commencing an action or proceeding to assert any right or claim it may have arising under or in connection with any Collateral Documents.
Appears in 1 contract
Samples: Indenture (Jazz Casino Co LLC)
Lien Subordination. (a) Notwithstanding the respective dates of attachment or perfection of the security interests of CR CRG Creditors and the security interests of [ [A/R Lender], or any contrary provision of the UCC, or any applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [ [A/R Lender] or CR any CRG Creditor holds possession of all or any part of the Collateral, (i) all now existing and hereafter arising security interests of [ [A/R Lender] in any [ ] A/R Facility Senior Collateral shall at all times be senior to the security interests of CR CRG Creditors in such [ ] A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CR CRG Creditors in any CR CRG Senior Collateral shall at all times be senior to any interests, including the security interests of [ [A/R Lender] in such CR CRG Senior Collateral. Notwithstanding the foregoing, [A/R Lender] agrees and acknowledges that it shall not receive, and [neither Borrower nor any Obligor shall grant][Borrower shall not grant], any security interest to [A/R Lender] in the CRG Senior Collateral.
(b) Each Creditor herebyof [A/R Lender] and CRG Agent, on behalf of CRG Creditors:
(i) acknowledges and consents to (A) Borrower [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) Borrower’s [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party;.
(ii) acknowledges and agrees that the other Creditor’s Claims, the Borrower’s entry into the Credit Documents with the other Creditor, and the security interests in the Common Collateral granted by Borrower to the other Creditor shall be permitted under such Creditor’s Credit Documents, notwithstanding any provision of such Creditor’s Credit Documents to the contrary; and
(iii) acknowledges, agrees and covenants, notwithstanding Section 2(c)) but subject to Section 5 , that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(iii)2(b)(ii) , the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security [***] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the parties hereto.
Appears in 1 contract
Lien Subordination. (a) Notwithstanding the respective dates of attachment or perfection of the security interests of CR CRG Creditors and the security interests of [ [A/R Lender], or any contrary provision of the UCC, or any applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [ [A/R Lender] or CR any CRG Creditor holds possession of all or any part of the Collateral, (i) all now existing and hereafter arising security interests of [ [A/ [†] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION R Lender] in any [ ] A/R Facility Senior Collateral shall at all times be senior to the security interests of CR CRG Creditors in such [ ] A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CR CRG Creditors in any CR CRG Senior Collateral shall at all times be senior to any interests, including the security interests of [ [A/R Lender] in such CR CRG Senior Collateral. Notwithstanding the foregoing, [A/R Lender] agrees and acknowledges that it shall not receive, and [neither Borrower nor any Obligor shall grant][Borrower shall not grant], any security interest to [A/R Lender] in the CRG Senior Collateral.
(ba) Each Creditor herebyof [A/R Lender] and CRG Agent, on behalf of CRG Creditors:
(i) acknowledges and consents to (A) Borrower [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) Borrower’s [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party;.
(ii) acknowledges and agrees that the other Creditor’s Claims, the Borrower’s entry into the Credit Documents with the other Creditor, and the security interests in the Common Collateral granted by Borrower to the other Creditor shall be permitted under such Creditor’s Credit Documents, notwithstanding any provision of such Creditor’s Credit Documents to the contrary; and
(iii) acknowledges, agrees and covenants, notwithstanding Section 2(c)) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(cb) Subject to Section 2(b)(iii2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the parties hereto.
Appears in 1 contract
Lien Subordination. (a) Notwithstanding Bank Security Interests in the respective dates of attachment or perfection Other Collateral shall be senior and prior in right to the Security Interests. The Trustee and each Holder acknowledge that the rights of the security interests of CR and Banks to receive proceeds from the security interests of [ ], or any contrary provision disposition of the UCC, or any applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [ ] or CR holds possession of all or any part of the Collateral, (i) all now existing and hereafter arising security interests of [ ] in any [ ] Senior Other Collateral shall at all times be is senior to the security interests rights of CR in such [ ] Senior Collateral, and (ii) all now existing and hereafter arising security interests the Holders to receive proceeds from the disposition of CR in any CR Senior Collateral shall at all times be senior to the security interests of [ ] in such CR Senior Other Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) Borrower granting The priorities set forth in this Section 1303 are applicable irrespective of the order of creation, attachment or perfection of any Liens or security interests or any priority that might otherwise be available to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) Borrower’s entry into the Credit Documents to which the other Creditor is a party;
(ii) acknowledges and agrees that the other Creditor’s ClaimsHolders, the Borrower’s entry into the Credit Documents with the other Creditor, and the security interests in the Common Collateral granted by Borrower to the other Creditor shall be permitted under such Creditor’s Credit Documents, notwithstanding any provision of such Creditor’s Credit Documents to the contrary; and
(iii) acknowledges, agrees and covenants, notwithstanding Section 2(c), that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common CollateralTrustee, or any Bank under the validity, priority or enforceability of the other Creditor’s Claimapplicable law.
(c) Subject to The priorities set forth in this Section 2(b)(iii)1303 are premised upon the assumption that the Bank Security Interests are duly and properly created and perfected and are not avoidable for any reason. Accordingly, the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests (but only for so long as) any Bank Security Interests are not duly and liens properly created and perfected or are enforceableavoidable for any reason, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, then the priorities subordinations provided for herein in this Section 1303 shall not be available effective as to the particular Collateral subject to such security interest Bank Security Interests; provided, however, that the Trustee and each Holder, by accepting a Security, agree not to contest, or lien to bring (or voluntarily join in) any action or proceeding for the extent purpose of contesting the validity, perfection or priority (as herein provided) of, or seeking to avoid, any Bank Security Interests, and provided further, that nothing herein shall be deemed or construed to prevent any Bank from commencing an action or proceeding to assert any right or claim it is avoided may have arising under or determined to be unenforceable. in connection with any Bank Security Documents.
(d) Nothing in this Section 2(c) affects the operation Indenture or in any Security Document shall constitute a subordination of any turnover Indenture Obligations to Bank Obligations. The Indenture Obligations are and shall be pari passu in right of payment provisions hereof, or of any other agreements among any of with the parties heretoBank Obligations.
Appears in 1 contract
Samples: Indenture (Harrahs Operating Co Inc)
Lien Subordination. (a) In order to secure all of Contractor’s obligations owed to United pursuant to this Agreement (including without limitation the timely payment by Contractor of all payment and reimbursement obligations to United hereunder and any damages incurred by United (including without limitation pursuant to Article VIII) in any case where United is entitled to recover damages pursuant to applicable law as a result of the default by Contractor of its obligations hereunder), Contractor hereby grants to United a security interest of first priority (subject only to liens that arise by operation of applicable law and except as provided below) in the following (the “E175 Lien”): any and all of Contractor’s right, title and interest in all appliances, accessories and other equipment or property installed in or on the E175 Covered Aircraft (including all replacements of the foregoing), any equipment stored at United facilities, any contractual rights or general intangibles material to the operation or ownership or otherwise related to the E175 Covered Aircraft or amounts payable to Contractor with respect to damage or casualty to the E175 Covered Aircraft and all proceeds of the foregoing and any accounts containing such proceeds (collectively, the “E175 Collateral”); provided that the E175 Lien shall be junior and subordinate to any purchase money security interest in favor of one or more lenders (which lenders are not affiliates of Contractor) (each, a “PMSI Lender”) arising from the provision by such lender(s) to Contractor of purchase money financing used to acquire any portion of the E175 Collateral. Contractor agrees, subject to the subordination provision set forth in this Section 10.6, that United shall have all the rights, powers and remedies of a secured party available under applicable law following any such default by Contractor, including but not limited to, the right to take possession of and sell in one or more transactions (whether by foreclosure, power of sale, or otherwise) the E175 Collateral or any part thereof; provided further that the E175 Collateral shall not include any property owned by United or not owned by Contractor or its affiliates. Contractor further agrees that United shall be entitled from time to time to file such Uniform Commercial Code (“UCC”) financing statements and continuation statements with respect to the E175 Collateral and take such other actions as it deems necessary or appropriate in connection with the perfection and maintenance of such security interest, and Contractor hereby consents to the filing of all such UCC financing statements and continuation statements. Contractor represents and warrants to United that Contractor’s current location (within the meaning of Section 9-307 of the UCC) is the State of Arizona. Contractor agrees that it will give United timely written notice (but in any event not later than [***] prior to the expiration of the period of time specified under applicable law to prevent lapse of perfection) of any change of its location (as such term is used in Section 9-307 of the UCC) from its then present location and will promptly take any action reasonably requested by United to continue the perfection of the E175 Lien on the E175 Collateral granted hereunder in favor of United; and provided, further, that no security interest shall be granted hereby in any property to the extent that such grant is prohibited by any agreement that comprises part of the [***] Transaction; and provided, further, that no security interest shall be granted hereby in any property to the extent that such grant is prohibited by any agreement that comprises part of a Secured Loan Transaction.
(b) Contractor hereby represents and warrants that (i) it has all requisite corporate power and authority to grant the E175 Lien in the E175 Collateral, and (ii) such grant does not breach or result in a default of any of Contractor’s contracts or agreements.
(c) Notwithstanding the respective dates date, manner or order of perfection or attachment or perfection of the security interests and liens granted by Contractor to United pursuant to this Section 10.6 or to any PMSI Lender, and notwithstanding the usual application of CR and the security interests priority provisions of [ ], the UCC or any contrary provision of the UCC, or any other applicable law or judicial decision, or the provisions of the Credit Documents, and irrespective of whether [ ] a PMSI Lender or CR United holds possession of all or any part of the E175 Collateral, (i) all now existing and hereafter arising security interests of [ ] in any [ ] Senior Collateral shall at all times be senior to the security interests of CR in such [ ] Senior Collateral, and (ii) all now existing and hereafter arising security interests of CR in any CR Senior Collateral shall at all times be senior to the security interests of [ ] in such CR Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) Borrower granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) Borrower’s entry into the Credit Documents to which the other Creditor is a party;
(ii) United hereby acknowledges and agrees that such PMSI Lender, as the other Creditor’s Claimscase may be, the Borrower’s entry into the Credit Documents with the other Creditor, shall have a first and the security interests in the Common Collateral granted by Borrower to the other Creditor shall be permitted under such Creditor’s Credit Documents, notwithstanding any provision of such Creditor’s Credit Documents to the contrary; and
(iii) acknowledges, agrees and covenants, notwithstanding Section 2(c), that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s prior continuing security interest in and lien on the Common E175 Collateral, or the validity, priority or enforceability of the other Creditor’s Claim.
(c) Subject to Section 2(b)(iii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and United shall have not been avoided; if a security interest or therein junior and subordinate in priority to the lien is judicially determined and security interest held by such PMSI Lender, as the case may be. United hereby agrees to be unenforceable or unperfected or is judicially avoided with respect make such filings and recordings in the public records to one or more Claims or any part thereof, evidence the priorities provided for made herein shall not as may be available reasonably requested by Contractor at the request any PMSI Lender, as the case may be, and, if required by any such PMSI Lender, enter into a subordination agreement directly with such PMSI Lender, as the case may be, in form and substance reasonably satisfactory to such security interest or lien to PMSI Lender for the extent that it is avoided or determined to be unenforceable. Nothing purpose of evidencing the subordination provisions set forth in this Section 2(c) affects 10.6. The provisions of this Section 10.6 are applicable regardless of whether the operation security interest and/or lien of any turnover of payment provisions hereofPMSI Lender, or of as the case may be, in the E175 Collateral is not perfected for any other agreements among any of the parties heretoreason.
Appears in 1 contract
Lien Subordination. (a) Notwithstanding the respective dates of attachment or perfection of the security interests of CR and the security interests of [ ], or any contrary provision of the UCC, or any applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [ ] or CR holds possession of all or any part of the Collateral, (i) all now existing and hereafter arising security interests The Liens on the Collateral securing the First Priority Secured Obligations ceasing to have senior “first priority” status with respect to Liens on the Collateral securing any Junior Lien Indebtedness with an aggregate principal amount outstanding in excess of [ ] in the Threshold Amount pursuant to any [ ] Senior Collateral shall at all times be senior to the security interests of CR in such [ ] Senior Collateralapplicable Acceptable Intercreditor Agreement, and (ii) all now existing and hereafter arising security interests of CR with respect to the provisions in any CR Senior Acceptable Intercreditor Agreement subordinating the Liens on the Collateral shall at all times be senior securing any Junior Lien Indebtedness with an aggregate principal amount outstanding in excess of the Threshold Amount to the security interests of [ ] in such CR Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to Liens on the Collateral securing the First Priority Secured Obligations, (A) Borrower granting to any Loan Party contests in writing the other Creditor a security interest in the Common Collateral of such other Creditorvalidity or enforceability thereof, (B) the other Creditor filing any and all financing statements and other documents as deemed necessary by the other Creditor court of competent jurisdiction in order a final non-appealable order, determines such subordination provisions to perfect its security interest in its Common Collateralbe invalid or unenforceable, and or (C) such subordination provisions otherwise cease to be valid, binding and enforceable obligations of the parties to such Acceptable Intercreditor Agreement, then, and in every such event (other than an event with respect to Holdings or the Borrower described in clause (f) or (g) of this Article) and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower’s entry into , take any of the Credit Documents to which following actions, at the other Creditor is a party;
same or different times: (i) terminate any Additional Commitments and thereupon such Additional Commitments shall terminate immediately and (ii) acknowledges declare the Loans then outstanding to be due and agrees that payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Creditor’s Claimsobligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower’s entry into ; provided that upon the Credit Documents with the other Creditor, and the security interests in the Common Collateral granted by Borrower to the other Creditor shall be permitted under such Creditor’s Credit Documents, notwithstanding any provision occurrence of such Creditor’s Credit Documents to the contrary; and
(iii) acknowledges, agrees and covenants, notwithstanding Section 2(c), that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim.
(c) Subject to Section 2(b)(iii), the priorities provided for herein an event with respect to security interests Holdings or the Borrower described in clauses (f) or (g) of this Article, any such Commitments and/or Additional Commitments shall automatically terminate and liens the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are applicable only hereby waived by the Borrower. Notwithstanding anything to the extent that such security interests contrary herein or in any Loan Document, all rights and liens are enforceableremedies hereunder and under any other Loan Document or at law or equity, perfected including all remedies provided under the UCC, shall be exercised exclusively by the Administrative Agent for the benefit of the Secured Parties. Upon the occurrence and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereofduring the continuance of an Event of Default, the priorities Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided for herein shall not be available to such security interest or lien to the extent that it is avoided Administrative Agent under the Loan Documents or determined to be unenforceable. Nothing in this Section 2(c) affects at law or equity, including all remedies provided under the operation of any turnover of payment provisions hereof, or of any other agreements among any of the parties heretoUCC.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Hillman Solutions Corp.)
Lien Subordination. (a) Notwithstanding the respective dates of attachment or perfection of the security interests of CR CRG Creditors and the security interests of [ [A/R Lender], or any contrary provision of the UCC, or any applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [ [A/R Lender] or CR any CRG Creditor holds possession of all or any part of the Collateral, (i) all now existing and hereafter arising security interests of [ [A/R Lender] in any [ ] A/R Facility Senior Collateral shall at all times be senior to the security interests of CR CRG Creditors in such [ ] A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CR CRG Creditors in any CR CRG Senior Collateral shall at all times be senior to any interests, including the security interests of [ [A/R Lender] in such CR CRG Senior Collateral. Notwithstanding the foregoing, [A/R Lender] agrees and 137168310 v21 acknowledges that it shall not receive, and [neither Borrower nor any Obligor shall grant][Borrower shall not grant], any security interest to [A/R Lender] in the CRG Senior Collateral.
(b) Each Creditor herebyof [A/R Lender] and CRG Agent, on behalf of CRG Creditors:
(i) acknowledges and consents to (A) Borrower [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as reasonably deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) Borrower’s [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party;.
(ii) acknowledges and agrees that the other Creditor’s Claims, the Borrower’s entry into the Credit Documents with the other Creditor, and the security interests in the Common Collateral granted by Borrower to the other Creditor shall be permitted under such Creditor’s Credit Documents, notwithstanding any provision of such Creditor’s Credit Documents to the contrary; and
(iii) acknowledges, agrees and covenants, notwithstanding Section 2(c)) but subject to Section 5, that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim. For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, [A/R Lender] shall not file or join in any motion or pleading in connection with any Insolvency Proceeding or take any other action seeking to recharacterize any Intellectual Property, the proceeds thereof, or any other CRG Senior Collateral or proceeds thereof as A/R Facility Senior Collateral.
(c) Subject to Section 2(b)(iii2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the parties hereto.
Appears in 1 contract
Samples: Term Loan Agreement (Omeros Corp)
Lien Subordination. (a) Notwithstanding the respective dates of attachment or perfection of the security interests of CR and the security interests of [ [A/R Lender], or any contrary provision of the UCC, or any applicable law or decision, or the provisions of the Credit Documents, and irrespective of whether [ [A/R Lender] or CR holds possession of all or any part of the Collateral, (i) all now existing and hereafter arising security interests of [ [A/R Lender] in any [ ] A/R Facility Senior Collateral shall at all times be senior to the security interests of CR in such [ ] A/R Facility Senior Collateral, and (ii) all now existing and hereafter arising security interests of CR in any CR Senior Collateral shall at all times be senior to the security interests of [ [A/R Lender] in such CR Senior Collateral.
(b) Each Creditor hereby:
(i) acknowledges and consents to (A) Borrower [Borrower][each Obligor] granting to the other Creditor a security interest in the Common Collateral of such other Creditor, (B) the other Creditor filing any and all financing statements and other documents as deemed necessary by the other Creditor in order to perfect its security interest in its Common Collateral, and (C) Borrower’s [Borrower’s][each Obligor’s] entry into the Credit Documents to which the other Creditor is a party;
(ii) acknowledges and agrees that the other Creditor’s Claims, the Borrower’s entry into the Credit Documents with the other Creditor, and the security interests in the Common Collateral granted by Borrower to the other Creditor shall be permitted under such Creditor’s Credit Documents, notwithstanding any provision of such Creditor’s Credit Documents to the contrary; and
(iiiii) acknowledges, agrees and covenants, notwithstanding Section 2(c), that it shall not contest, challenge or dispute the validity, attachment, perfection, priority or enforceability of the other Creditor’s security interest in the Common Collateral, or the validity, priority or enforceability of the other Creditor’s Claim.
(c) Subject to Section 2(b)(iii2(b)(ii), the priorities provided for herein with respect to security interests and liens are applicable only to the extent that such security interests and liens are enforceable, perfected and have not been avoided; if a security interest or lien is judicially determined to be unenforceable or unperfected or is judicially avoided with respect to one or more Claims or any part thereof, the priorities provided for herein shall not be available to such security interest or lien to the extent that it is avoided or determined to be unenforceable. Nothing in this Section 2(c) affects the operation of any turnover of payment provisions hereof, or of any other agreements among any of the parties hereto.
Appears in 1 contract
Samples: Term Loan Agreement (Nevro Corp)
