Certain Exceptions. Notwithstanding Section 1.1, no security interest is or will be granted pursuant hereto in any right, title or interest of any Grantor under or in (each of (a) through (h) collectively, the “Excluded Collateral”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, licenses or other contracts or agreements with or issued by Persons other than Holdings or a Subsidiary of Holdings or an Affiliate thereof (collectively, “Excluded Agreements”) that would otherwise be included in the Collateral (and such Excluded Agreements shall not be deemed to constitute a part of the Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Excluded Agreements (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided, however, that a security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result in a breach, default or termination of such Excluded Agreement; or (b) equity interests in any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section 10.02(xiii) of the Credit Agreement, or is subject to any Liens permitted under Section 10.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such Lien.

Appears in 2 contracts

Sources: Credit Agreement (Bway Parent Company, Inc.), Security Agreement (BWAY Holding CO)

Certain Exceptions. ~~Notwithstanding Section 1.1, no security interest~~ Appraisal rights shall be available for the Interests in a Merger in which LLC is ~~or will be granted pursuant hereto in any right, title or interest of any Grantor under or in (each of (a) through (h) collectively, the “Excluded Collateral”):~~a constituent entity; (ai) any Instruments, Contracts, Chattel Paper, General Intangibles, licenses or other contracts or agreements with or issued by Persons other than Holdings or a Subsidiary of Holdings or an Affiliate thereof (collectively, “Excluded Agreements”) that would otherwise be included in the Collateral (and such Excluded Agreements shall not be deemed to constitute a part of the Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Excluded Agreements (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided, however, that ~~a security interest in an Excluded Agreement in favor~~ no appraisal rights under this section shall be available for Interests of any class or series which, at the record date, if any, fixed to determine the Members entitled to receive notice of and to vote upon the Merger or, if no such record date is fixed, the date of the ~~Secured Creditors~~ Merger, were either (x) listed on a national securities exchange or designated as a national market system security on a interdealer quotation system by the National Association of Securities Dealers, Inc. or (y) held of record by more than 2,000 Members; and further provided that no appraisal rights shall ~~attach immediately at such time as Grantor’s grant~~ be available for any Interests of ~~a security interest in such Excluded Agreement no longer results in a breach~~LLC if LLC is the surviving entity and the Merger would not have required the approving vote of stockholders, ~~default or termination thereof or thereunder and,~~ pursuant to ~~the extent severable, shall attach immediately to any portion~~ subsection (f) and (g) of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance Section 251 of the ~~foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of~~ Delaware General Corporation Law if LLC were a security interest therein would result in a breach, default or termination of such Excluded Agreement; or (b) equity interests in any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiarycorporation under Delaware Law; (cii) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and notwithstanding paragraph (i) of this subsection, appraisal rights under this section shall be available for the Interests of any class or series if the holders thereof are required by the terms of the ~~following~~agreement of merger to accept for such Interests anything except: ~~(1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part~~ a. Shares of stock of the ~~Collateral) if~~ corporation, or membership interests in a nonstock entity, surviving or resulting from such ~~asset is subject to~~ Merger, or depository receipts in respect thereof; b. Shares of stock of any other corporation, or membership interests in a ~~Lien permitted by Section 10.01(vi)~~ nonstock entity, or depository receipts in respect thereof, which shares of stock, membership interests or depository receipts at the effective date of the ~~Credit Agreement~~merger or consolidation will be either listed on a national securities exchange or designated as a national market system security on an interdealer quotation system by the National Association of Securities Dealers, Inc. or held of record by more than 2,000 holders; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section 10.02(xiii) of the Credit Agreement, or is subject to any Liens permitted under Section 10.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such Lien.

Appears in 2 contracts

Sources: Limited Liability Company Agreement (Iridium World Communications LTD), Limited Liability Company Agreement (Iridium LLC)

Certain Exceptions. Notwithstanding ~~Section 1.1, no security interest is~~ the foregoing provisions of this Section: (i) any Restricted Subsidiary may elect to convert from a corporation or ~~will be granted pursuant hereto~~ partnership into a limited liability company and any Restricted Subsidiary (other than any Acquisition Subsidiary at the time obligated in ~~any right, title or interest~~ respect of any ~~Grantor~~ Indebtedness permitted under Section 6.03(h)) may be merged or ~~in (each of (a) through (h) collectively, the “Excluded Collateral”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, licenses or other contracts or agreements~~ consolidated with or ~~issued by Persons~~ into (x) the Borrower if the Borrower shall be the continuing or surviving corporation or (y) MCC or any other ~~than Holdings or a Subsidiary of Holdings or an Affiliate thereof (collectively~~Restricted Subsidiary, “Excluded Agreements”) that would otherwise be included in the Collateral (and such Excluded Agreements shall not be deemed to constitute a part of the Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Excluded Agreements (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided, however, that a ~~security interest in an Excluded Agreement in favor of~~ Newspaper Entity may not be merged or consolidated with or into MCC or a Restricted Subisidiary unless the ~~Secured Creditors shall attach immediately at such time as Grantor’s grant of~~ surviving entity is a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result in a breach, default or termination of such Excluded Agreement; or (b) equity interests in any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign SubsidiaryNewspaper Entity; (cii) any ~~“intent~~ Restricted Subsidiary (other than a Newspaper Entity) may sell, lease, transfer or otherwise dispose of any or all of its Property (upon voluntary liquidation or otherwise), provided that any such sale, lease, transfer or other disposition to ~~use” Trademark applications for which a statement~~ an Affiliate shall satisfy the requirements of ~~use has not been filed~~ Section 6.09, it being understood that any such sale, lease, transfer or other disposition to an Affiliate of real property that satisfies the requirements of clause (~~but only until such statement is filed whereupon such applications~~ vii) below, shall be ~~automatically subject~~ deemed to satisfy the ~~Lien granted herein and deemed included~~ requirements of Section 6.09; (iii) any Newspaper Entity (other than any Acquisition Subsidiary obligated at the time in respect of any Indebtedness permitted under Section 6.03(h)) may sell, lease, transfer or otherwise dispose of any or all of its Property (upon voluntary liquidation or otherwise) to any other Newspaper Entity (other than to any Acquisition Subsidiary obligated at the ~~Collateral~~time in respect of any Indebtedness permitted under Section 6.03(h)); (div) MCC or any ~~rights~~ of its Restricted Subsidiaries may (whether by way of purchase of assets or ~~property~~ stock, by merger or consolidation or otherwise) make any acquisition of a business, and the related assets, of any other Person (i.e. any Person other than MCC or any of its Restricted Subsidiaries), provided that: (A) no later than five Business Days prior to the ~~extent that~~ consummation of such acquisition, the Borrower shall have delivered to the Administrative Agent drafts or executed counterparts of the respective agreements or instruments pursuant to which such acquisition is to be consummated (together with any ~~valid~~ related management, non-compete, employment, option or other material agreements and ~~enforceable law~~ any lease or ~~regulation applicable~~ other agreement entered into with any Affiliate of the seller) and any schedules or other material ancillary documents to be executed or delivered in connection therewith as are sufficient to demonstrate compliance by the Borrower with the requirements of this Section 6.01(c)(iv) and (B) promptly following request therefor, the Borrower shall deliver copies of such other information or documents relating to such ~~rights~~ acquisition as any Lender or ~~property prohibits~~ Lenders (through the ~~creation of a security interest therein;~~Administrative Agent) shall have reasonably requested; the agreements, instruments and other documents referred to above shall provide that (eI) ~~those assets as to which~~ neither MCC nor any of its Restricted Subsidiaries shall, in connection with such acquisition, assume any (1) Indebtedness of the ~~Collateral Agent shall determine~~ seller or sellers (except Indebtedness that is permitted under Section 6.03(h)) or (2) other obligations of the seller or sellers (except for obligations incurred in ~~its sole discretion that~~ the ~~cost~~ ordinary course of ~~obtaining a security interest are excessive~~ business in ~~relation~~ operating the Property so acquired and reasonably necessary or desirable to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents continued operation of such ~~joint venture or other non Wholly-Owned Subsidiary; (h~~Property) ~~Excluded Deposit Accounts;~~ and (iII) all Property to be acquired in connection with such acquisition shall be acquired free and clear of any ~~of the following:~~ and all Liens (~~1) any asset~~ except for Liens that ~~would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien~~ are permitted by Section ~~10.01(vi) of the Credit Agreement~~6.02); (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section 10.02(xiii) of the Credit Agreement, or is subject to any Liens permitted under Section 10.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such Lien.

Appears in 2 contracts

Sources: Credit Agreement (Morris Publishing Group LLC), Credit Agreement (Oak Ridger LLC)

Appears in 2 contracts

Sources: Credit Agreement (Nci Building Systems Inc), Guarantee and Collateral Agreement (Nci Building Systems Inc)

Certain Exceptions. Notwithstanding Section 1.1, no security interest is or will be granted pursuant hereto in any right, title or interest of any Grantor in, to or under ~~or in~~ (each of (a) through (ho) collectively, the “Excluded Collateral”): (a) any ~~Instruments~~fee-owned real property with a fair market value (as determined in good faith by the Lead Borrower) of less than $2,000,000 or any real property leasehold interests; (b) interest in any contracts (including Contracts and Contract Rights), ~~Contracts~~permits (including Permits), licenses, Accounts, General Intangibles (other than any Equity Interests), Payment Intangibles, Chattel Paper, General Intangibles, licenses or other contracts or agreements with or issued by Persons other than Holdings or a Subsidiary of Holdings or an Affiliate thereof (collectively, “Excluded Agreements”) that would otherwise be included in the Collateral (Letter-of-Credit Rights and such Excluded Agreements shall not be deemed to constitute a part of the Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Excluded Agreements (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided, however, that a security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that Promissory Notes if the grant of a security interest or Lien therein ~~would result in~~ is prohibited as a ~~breach, default~~ matter of law or ~~termination~~ under the terms of such ~~Excluded Agreement; or~~contracts (including Contracts and Contract Rights), permits (including Permits), licenses, Accounts, General Intangibles, Payment Intangibles, Chattel Paper, Letter-of-Credit Rights and Promissory Notes, in each case after giving effect to Article 9 of the applicable Uniform Commercial Code, other applicable law and principles of equity; (bc) ~~equity interests in~~ the Voting Equity Interests of (i) any first-tier ~~foreign~~ Foreign Subsidiary that is a CFC or of a FSHCO in excess of 65% of the ~~total~~ outstanding Voting Equity Interests ~~of such first-tier foreign Subsidiary;~~ thereof and (cii) any ~~“intent to use” Trademark applications for which~~ Subsidiary of (x) a ~~statement of use has not been filed~~ Foreign Subsidiary that is a CFC or (~~but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral)~~y) a FSHCO; (d) ~~any rights or property~~ assets subject to Capitalized Lease Obligations, purchase money financing and cash to secure letter of credit reimbursement obligations to the extent ~~that any valid~~ such Capitalized Lease Obligations, purchase money financing or letters of credit are permitted under the Credit Agreement and ~~enforceable law or regulation applicable to such rights or property prohibits~~ the ~~creation~~ terms thereof prohibit a grant of a security interest therein; (e) assets sold to a person who is not a Credit Party in compliance with the Credit Agreement; (f) assets owned by a Guarantor after the release of the guaranty of the Obligations of such Guarantor pursuant to the Credit Agreement; (g) motor vehicles (including Vehicles) and other goods subject to certificates of title other than to the extent a security interest therein can be perfected by a UCC filing; (h) any application for registration of a trademark filed with the United States Patent and Trademark Office (“PTO”) on an intent-to-use basis until such time (if any) as a statement of use or amendment to allege use is accepted by the PTO, at which time such trademark shall automatically become part of the Collateral and subject to the security interest of this Agreement; (i) Equity Interests in any Person other than Wholly-Owned Subsidiaries to the extent a pledge thereof is not permitted by the terms of such Subsidiary’s organizational or joint venture documents after giving effect to the anti-assignment provisions of the UCC of any applicable jurisdiction; (j) Letter-of-Credit Rights with a value of less than $1,000,000 (to the extent a security interest therein cannot be perfected by a UCC filing) and Commercial Tort Claims with a value (as determined in good faith by the Lead Borrower) of less than $5,000,000; (k) those assets as to which the ~~Collateral~~ Administrative Agent ~~shall determine~~ and the Lead Borrower reasonably and mutually agree in ~~its sole discretion~~ writing that the cost of obtaining such a security interest or perfection thereof are excessive in relation to the ~~value~~ benefit to the Lenders of the security to be afforded thereby; (fl) in “margin stock” (within the ~~case~~ meaning of ~~foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law~~Regulation U); (gm) ~~any Equity Interests~~ Excluded Deposit Accounts described in ~~a joint venture or other non Wholly-Owned Subsidiary to~~ clauses (i) through (iii) of the ~~extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary~~definition thereof; (hn) ~~Excluded Deposit Accounts; and (i) any~~ Equity Interests of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit AgreementUnrestricted Subsidiaries; (2o) any ~~Equipment~~segregated deposits that constitute Permitted Liens under clause (iii), ~~machinery~~ (xii), (xiv), (xv), (xxviii), (xxxi), (xxxvi), (xxxviii) or ~~other fixed asset that would otherwise be included in the Collateral~~ (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(viixlii) of the Credit Agreement; (3) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section ~~10.02(xiii)~~ 10.01 of the Credit Agreement, ~~or is~~ in each case, that are prohibited from being subject to any Liens permitted under Section 10.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii)other Liens; and (4p) any ~~property or~~ asset to the extent the granting of a security interest in such asset results in a material adverse tax consequence to Holdings, the Lead Borrower and/or its Subsidiaries, as reasonably determined in good faith by the Lead Borrower in consultation with the Administrative Agent; provided, however, that ~~would otherwise be included in the~~ Excluded Collateral ~~(and such property or asset~~ shall not ~~be deemed~~ include any Proceeds, substitutions or replacements of any Excluded Collateral referred to ~~constitute a part~~ in any of ~~the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding~~ clauses (~~i)(1~~a) through (4p) (unless such Proceeds, substitutions or replacements would constitute Excluded Collateral referred to in any of clauses (a) through (p)~~, for so long as, and~~ ). Notwithstanding anything to the ~~extent that~~contrary contained herein or in any other Credit Document, (i) no Grantor shall be required to perfect the ~~granting or existence of such a~~ security interest ~~pursuant hereto would result~~ in ~~a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case~~Fixtures, except to the extent ~~any such breach~~that the same are Equipment or are related to or located on Material Real Property, ~~default or termination would be rendered ineffective under~~ other than by the filing of a UCC ~~or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses~~ financing statement and (~~i)(1~~ii) ~~through (4), the relevant~~ no Grantor shall be ~~deemed~~ required to ~~have granted~~ take any action with respect to the creation or perfection of a security interest ~~in all of its rights, title and interests~~ or Liens under ~~or in such asset, Equipment or other property that is the subject of such Lien~~foreign law with respect to any Collateral.

Appears in 2 contracts

Sources: First Lien Security Agreement (PAE Inc), Second Lien Security Agreement (PAE Inc)

Certain Exceptions. ~~Notwithstanding Section 1.1, no~~ No security interest is or will be granted pursuant ~~hereto~~ to this Agreement or any other Note Security Document in any right, title or interest of any Grantor ~~under~~ under, to or in ~~(each of (a) through (h) collectively~~any Excluded Assets. As used in this Agreement, the term “Excluded ~~Collateral”):~~Assets” means: (a) any Instruments, Contracts, Chattel Paper, General Intangibles, ~~licenses~~ Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than ~~Holdings or~~ Holdings, a Restricted Subsidiary of Holdings or an Affiliate thereof (collectively, “~~Excluded~~ Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such ~~Excluded~~ Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such ~~Excluded~~ Restrictive Agreements (in each case, except to the extent ~~any such breach~~that, ~~default or termination would be rendered ineffective under~~ pursuant to the ~~UCC~~ Code or other applicable law~~); provided~~, ~~however, that a~~ the granting of security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, interests therein can be made without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result resulting in a breach, default or termination of such ~~Excluded Agreement; or~~Restrictive Agreements); (b) ~~equity interests in~~ any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture Equipment or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset property that would otherwise be included in the Security Collateral (and such ~~asset~~ Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such ~~asset~~ Equipment or other property (x) is subject to a Lien in respect of Purchase Money Obligations or Capitalized Lease Obligations permitted by Section ~~10.01(vi~~413 of the Indenture as a “Permitted Lien” pursuant to clause (h), or (with respect to such a Lien described in clause (h) of such term) clause (o) of the ~~Credit Agreement~~definition of such term (but in each case only for so long as such Liens are in place) or (y) is subject to any Lien in respect of Hedging Obligations permitted by Section 413 of the Indenture as a “Permitted Lien” pursuant to clause (h), or (with respect to such a Lien described clause (h) of such term) clause (o) of the definition of such term (but in each case only for so long as such Liens are in place), and such Equipment or other property consists solely of (i) cash, Cash Equivalents, Temporary Cash Investments and Investment Grade Securities, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y); (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3c) any property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property (x) has been sold or otherwise transferred in connection with a Special Purpose Financing, or (y) constitutes the proceeds or products of any property that has been sold or otherwise transferred pursuant to such Special Purpose Financing (other than any payments received by the Company or any Grantor in payment for the sale and transfer of such property in such Special Purpose Financing), or (z) is subject to any Liens securing Indebtedness incurred in compliance with Section 407(b)(ix) of the Indenture or permitted by Section 413 of the Indenture as “Permitted Liens” permitted pursuant to clause (k)(5) or (p)(12) of the definition of such term; (d) any property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property has been sold or otherwise transferred in connection with a ~~sale-~~sale and leaseback transaction permitted under Section ~~10.02(xiii)~~ 411 of the ~~Credit Agreement~~Indenture, or is subject to any Liens permitted under Section ~~10.01(xviii)~~ 413 of the Indenture and consists of property subject to any such sale and leaseback transaction or general intangibles related thereto; provided that notwithstanding the foregoing, the security interest of the Note Collateral Agent shall attach to any money, securities or other consideration received by any Grantor as consideration for the sale or other disposition of such property as and to the extent such consideration would otherwise constitute Collateral; (e) Capital Stock that constitutes (i) more than 65% of any series of the outstanding Capital Stock of any Foreign Subsidiary, (ii) the Capital Stock of a Subsidiary of a Foreign Subsidiary or (iii) de minimis shares of a Foreign Subsidiary held by the Company or any Grantor as a nominee or in a similar capacity; (f) any Money, cash, checks, other negotiable instrument, funds and other evidence of payment held in any Deposit Account of the Company or any of its Subsidiaries in the nature of a security deposit with respect to obligations for the benefit of the Company or any of its Subsidiaries, which must be held for or returned to the applicable counterparty under applicable law or pursuant to Contractual Obligations; (g) the Investment Agreement and any rights therein or arising thereunder; (h) any interest in leased real property; (i) any fee interest in owned real property if the fair market value of such fee interest is less than $2.0 million individually; (j) any Vehicles and any other assets subject to certificate of title; (k) Letter of Credit ~~Agreement~~Rights and Commercial Tort Claims individually with a value of less than $3.0 million; (l) assets to the extent a security interest in such assets would result in costs or consequences as reasonably determined by the Company with respect to the granting or perfecting of a security interest that is excessive in view of the benefits to be obtained by the Secured Parties; (m) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Indenture, applicable law or regulation or the organizational documents or joint venture documents of any non-wholly owned Subsidiary (including permitted liens, leases and licenses), or ~~constitutes~~ to the ~~Proceeds~~ extent that such security interests would result in material adverse tax consequences as reasonably determined by the Company; (n) Foreign Intellectual Property; (o) any Capital Stock and other securities of a Subsidiary to the extent that the pledge of or ~~products~~ grant of any ~~property that has been so sold~~ other Lien on such Capital Stock and other securities results in the Company being required to file separate financial statements of such Subsidiary with the Securities and Exchange Commission (or ~~otherwise transferred so long~~ any other governmental authority) pursuant to either Rule 3-10 or 3-16 of Regulation S-X under the Securities Act, or any other law, rule or regulation as ~~such Proceeds or products remain~~ in effect from time to time, but only to the extent necessary to not be subject to ~~the Liens referenced above in this clause (b)(iii)~~such requirement; and (4p) any ~~property~~ Capital Stock of any Foreign Subsidiary, provided that if the ownership interest in such Capital Stock is not transferred to a Subsidiary of the Company that is not a Grantor substantially concurrently with the consummation of the Transactions or ~~asset that would otherwise~~ within forty-five days thereafter, such Capital Stock shall no longer be ~~included in the Collateral~~ an Excluded Asset pursuant to this clause (p) and ~~such property or asset~~ shall ~~not~~ be deemed to constitute a part of the ~~Collateral~~Security Collateral to the extent not an Excluded Asset pursuant to any of clauses (a) through (o) above. For the avoidance of doubt, if any Grantor receives any payment or other amount under the Investment Agreement, such ~~property~~ payment or ~~assets is subject~~ other amount shall constitute Collateral when and if actually received by such Grantor, to ~~a Lien permitted~~ the extent set forth in Section 3.1 above. The Company will give written notice to the Note Collateral Agent of any determination made by ~~Section 10.01(xiv~~the Company as contemplated by clause (l) or (m) of the ~~Credit Agreement; in each case pursuant to~~ preceding clauses (i)(1) through (4), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such LienExcluded Assets definition.

Appears in 2 contracts

Sources: Collateral Agreement (Unistrut International Holdings, LLC), Collateral Agreement (Unistrut International Holdings, LLC)

Appears in 2 contracts

Sources: Guarantee and Collateral Agreement (VWR International, Inc.), Guarantee and Collateral Agreement (VWR International, Inc.)

Certain Exceptions. ~~Notwithstanding Section 1.1, no~~ No security interest is or will be granted pursuant ~~hereto~~ to this Agreement or any other Security Document in any right, title or interest of any ~~Grantor~~ Granting Party under or in in, and “Collateral” and “Pledged Collateral” shall not include the following (~~each of (a) through (h)~~ collectively, the “Excluded ~~Collateral~~Assets”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, ~~licenses~~ Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than ~~Holdings or~~ Holding, a Subsidiary of ~~Holdings~~ Holding or the Borrower or an Affiliate ~~thereof~~ of any of the foregoing (collectively, “~~Excluded~~ Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such ~~Excluded~~ Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such ~~Excluded~~ Restrictive Agreements (in each case, except to the extent ~~any such breach~~that, ~~default or termination would be rendered ineffective under~~ pursuant to the ~~UCC or~~ Code and other applicable law~~); provided~~, ~~however, that a~~ the granting of security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, interests therein can be made without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result resulting in a breach, default or termination of such ~~Excluded Agreement; or~~Restrictive Agreements); (b) ~~equity interests in~~ any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture Equipment or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in subsection 7.2(h) of the Credit Agreement (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or 7.2(o) of the Credit Agreement (with respect to such Liens described in such subsection 7.2(h) of the Credit Agreement (or any corresponding provision of the Second Lien Credit Agreement, ABL Credit Agreement or any Additional Credit Facility, provided that such provision in any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) (but in each case only for so long as such Liens are in place); or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement, but excluding any Hedging Obligations secured under (A) any Security Document, (B) any ABL Collateral Document (as defined in the ABL/Term Loan Intercreditor Agreement) or (C) any Additional Collateral Document (as defined in the Base Intercreditor Agreement)) permitted by subsection 7.2 of the Credit Agreement (or any corresponding provision of the Second Lien Credit Agreement, the ABL Credit Agreement or any Additional Credit Facility, provided that such provision in any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) (but only for so long as such Liens are in place), and such Equipment or other property consists solely of (i) cash, Cash Equivalents or Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions, or to such Hedging Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any such Hedging Obligations or (2) any other agreements, instruments or documents related to any such Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this subclause (y); (c) any property (and/or related rights and/or assets) (A) that would otherwise be included in the Security Collateral (and such property (and/or related rights and/or assets) shall not be deemed to constitute a part of the Security Collateral) if such property (x) has been sold or otherwise transferred in connection with (i) a ~~sale-leaseback transaction permitted under Section 10.02(xiii~~Special Purpose Financing, (ii) a Sale and Leaseback Transaction the proceeds of which are applied pursuant to subsection 3.4 of the Credit ~~Agreement,~~ Agreement (or ~~is subject to~~ any ~~Liens permitted under Section 10.01(xviii)~~ corresponding provision of the Second Lien Credit Agreement, the ABL Credit Agreement or any Additional Credit Facility; provided that such provision in any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) if and to the extent required thereby or (iii) an Exempt Sale and Leaseback Transaction, or (y) constitutes the Proceeds or products of any property that has been so sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction) or (B) is subject to any Liens securing Indebtedness incurred in compliance with subsection 7.1(b)(ix) of the Credit Agreement, or Liens permitted under subsection 7.2(m)(vii) or 7.2(p)(xii) of the Credit Agreement (or in each case any corresponding provision of the Second Lien Credit Agreement, the ABL Credit Agreement or any Additional Credit Facility; provided that such provision in any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent); (d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock; (e) any interest in leased real property (including Fixtures related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters); (f) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $10,000,000 individually; (g) any Vehicles and any assets subject to certificate of title; (h) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $10,000,000; (i) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holding or any of its Subsidiaries as reasonably determined in writing by the Borrower and the Administrative Agent and to the extent such assets would otherwise constitute Term Priority Collateral, the Collateral Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties; (j) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (including permitted liens, leases and licenses), including contracts over which the granting of security interests therein would result in termination thereof (in each case, after giving effect to the applicable anti-assignment provisions of the Code and other applicable law, other than proceeds and receivables thereof to the extent that their assignment is expressly deemed effective under the Code and/or other applicable law notwithstanding such prohibitions), or to the extent that such security interests would result in material adverse tax consequences to Holding, the Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its Subsidiaries to enter into any security agreements or pledge agreements governed by foreign law); (k) the Acquisition Agreement and any rights therein or arising thereunder (it being understood that this clause (k) shall not apply to any proceeds of the Acquisition Agreement); (i) any assets specifically requiring perfection through control agreements (including cash, cash equivalents, deposit accounts or other bank or securities accounts but excluding the Collateral Proceeds Account, DDAs, Concentration Accounts, the Core Concentration Account and Blocked Accounts (in each case only to the extent a control agreement is required pursuant to Subsection 4.16 of the ABL Credit Agreement)) to the extent the security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction or, in the case of Pledged Stock, by being held by the Collateral Agent, the Administrative Agent, any Collateral Representative or an Additional Agent as agent for the Collateral Agent or in accordance with the Base Intercreditor Agreement and (ii) (A) so long as the ABL Credit Agreement is in effect, Excluded Accounts (as defined in the ABL Credit Agreement) and (B) at any time that the ABL Credit Agreement is not in effect, deposit accounts used exclusively as escrow, fiduciary or trust accounts or designated disbursement accounts and non-U.S. bank accounts; (m) Foreign Intellectual Property; (n) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof; (o) any Capital Stock and other securities of a Subsidiary of the Borrower to the extent that the pledge of or grant of any other Lien on such ~~Proceeds~~ Capital Stock and other securities for the benefit of any holders of securities results in the Borrower or ~~products remain~~ any of its Restricted Subsidiaries being required to file separate financial statements for such Subsidiary with the Securities and Exchange Commission (or any other governmental authority) pursuant to either Rule 3-10 or 3-16 of Regulation S-X under the Securities Act, or any other law, rule or regulation as in effect from time to time, but only to the extent necessary to not be subject to such requirement; (p) any assets or property of Holding, other than the ~~Liens referenced above in this clause (b)(iii)~~Pledged Stock of the Borrower; and (4q) any Goods in which a security interest is not perfected by filing a financing statement in the applicable Grantor’s jurisdiction of organization. Notwithstanding the foregoing clauses (a) through (q), prior to the Discharge of ABL Obligations, “Excluded Assets” shall not include any property or asset that ~~would otherwise be included in the~~ is Term Loan Priority Collateral ~~(and~~ or ABL Priority Collateral at any time such property or asset ~~shall not be deemed to constitute a part of the~~ (i) constitutes “Collateral~~) if such property~~ ” or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective “Pledged Collateral” under the ~~UCC or other applicable law); provided that immediately upon repayment~~ ABL Collateral Agreement and (ii) for the avoidance of doubt, is not an “Excluded Asset” under the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such LienABL Collateral Agreement.

Appears in 2 contracts

Sources: First Lien Credit Agreement (Us LBM Holdings, Inc.), First Lien Guarantee and Collateral Agreement (Us LBM Holdings, Inc.)

Certain Exceptions. ~~Notwithstanding Section 1.1, no~~ No security interest is or will be granted pursuant hereto in any right, title or interest of any ~~Grantor~~ Granting Party under or in (~~each of (a) through (h)~~ collectively, the “Excluded ~~Collateral~~Assets”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, ~~licenses~~ Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than ~~Holdings or~~ the Parent Borrower, a Restricted Subsidiary ~~of Holdings~~ or an Affiliate thereof (collectively, “~~Excluded~~ Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such ~~Excluded~~ Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such ~~Excluded~~ Restrictive Agreements (in each case, except to the extent ~~any such breach~~that, ~~default or termination would be rendered ineffective under~~ pursuant to the ~~UCC~~ Code or other applicable law~~); provided~~, ~~however, that a~~ the granting of security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, interests therein can be made without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result resulting in a breach, default or termination of such ~~Excluded Agreement; or~~Restrictive Agreements); (b) ~~equity interests in~~ any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture Equipment or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset property that would otherwise be included in the Security Collateral (and such ~~asset~~ Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such ~~asset~~ Equipment or other property (x) is subject to a Lien ~~permitted by Section 10.01(vi~~described in subsection 7.2(h) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) in respect of Purchase Money Obligations or Capitalized Lease Obligations, or a Lien described in subsection 7.2(o) (with respect to such a Lien described in subsection 7.2(h)) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement), and consists of Equipment or other property financed or refinanced thereby (including through any financing or refinancing of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in subsection 7.2(h) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) in respect of Hedging Obligations, or a Lien described in subsection 7.2(o) (with respect to such a Lien described in subsection 7.2(h)) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y); (2c) any ~~Equipment, machinery or other fixed asset~~ property that (A) would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property (x) has been sold or otherwise transferred in connection with (i) a ~~sale-leaseback transaction permitted under Section 10.02(xiii~~Special Purpose Financing, (ii) a Sale and Leaseback Transaction the proceeds of which are applied pursuant to subsection 3.4 of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) if and to the extent required thereby or (iii) an Exempt Sale and Leaseback Transaction, ~~or is subject to any Liens permitted under Section 10.01(xviii~~(y) ~~of the Credit Agreement, or~~ constitutes the Proceeds or products of any property that has been so sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction) or (z) is subject to any Liens securing Indebtedness incurred in compliance with subsection 7.1(b)(ix) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement), or Liens permitted under subsection 7.2(k)(4) or 7.2(p)(12) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) or (B) is subject to any Permitted Lien and consists of property subject to any such sale and leaseback transaction or general intangibles related thereto (but only for so long as such ~~Proceeds~~ Liens are in place); (d) each Granting Party acknowledges that certain of the Pledged Collateral of such Granting Party may now or ~~products remain subject~~ in the future consist of ULC Shares, and that it is the intention of the U.S. ABL Collateral Agent and each Granting Party that neither the U.S. ABL Collateral Agent nor any other Secured Party should under any circumstances prior to realization be held to be a “member” or “shareholder”, as applicable, of a ULC for the purposes of any ULC Laws. Therefore, notwithstanding any provisions to the ~~Liens referenced above~~ contrary contained in this ~~clause~~ Agreement, the ABL Credit Agreement or any other Loan Document, where a Granting Party is the registered and beneficial owner of ULC Shares which are Pledged Collateral of such Granting Party, such Granting Party will remain the sole registered and beneficial owner of such ULC Shares until such time as such ULC Shares are effectively transferred into the name of the U.S. ABL Collateral Agent, any other Secured Party, or any other Person on the books and records of the applicable ULC. Accordingly, each Granting Party shall be entitled to receive and retain for its own account any dividend or other distribution, if any, in respect of such ULC Shares (~~b)(iii~~except for any dividend or distribution comprised of share certificates representing Pledged Collateral, which shall be delivered to the U.S. ABL Collateral Agent to hold as Pledged Collateral hereunder) and shall have the right to vote such ULC Shares and to control the direction, management and policies of the applicable ULC to the same extent as such Granting Party would if such ULC Shares were not pledged to the U.S. ABL Collateral Agent pursuant hereto. Nothing in this Agreement, the ABL Credit Agreement or any other Loan Document is intended to, and nothing in this Agreement, the ABL Credit Agreement or any other Loan Document shall, constitute the U.S. ABL Collateral Agent, any other Secured Party, or any other Person other than the applicable Granting Party, a member or shareholder of a ULC for the purposes of any ULC Laws (whether listed or unlisted, registered or beneficial), until such time as notice is given to such Granting Party and further steps are taken pursuant hereto or thereto so as to register the U.S. ABL Collateral Agent, any other Secured Party, or such other Person, as specified in such notice, as the holder of the ULC Shares. To the extent any provision hereof would have the effect of constituting the U.S. ABL Collateral Agent or any other Secured Party as a member or a shareholder, as applicable, of any ULC prior to such time, such provision shall be severed herefrom and shall be ineffective with respect to ULC Shares which are Pledged Collateral of any Granting Party, without otherwise invalidating or rendering unenforceable this Agreement or invalidating or rendering unenforceable such provision insofar as it relates to Pledged Collateral of any Granting Party which is not ULC Shares. Except upon the exercise of rights of the U.S. ABL Collateral Agent to sell, transfer or otherwise dispose of ULC Shares in accordance with this Agreement, each Granting Party shall not cause or permit, or enable an Issuer that is a ULC to cause or permit, the U.S. ABL Collateral Agent or any other Secured Party to: (a) be registered as a shareholder or member of such Issuer; (b) have any notation entered in their favor in the share register of such Issuer; (c) be held out as shareholders or members of such Issuer; (d) receive, directly or indirectly, any dividends, property or other distributions from such Issuer by reason of the U.S. ABL Collateral Agent holding the Security Interests over the ULC Shares; or (e) act as a shareholder of such Issuer, or exercise any rights of a shareholder including the right to attend a meeting of shareholders of such Issuer or to vote its ULC Shares; (e) Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of the proviso contained in the parenthetical to such definition; (f) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the ABL Credit Agreement, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity), or (ii) to the extent that such security interests would result in material adverse tax consequences as reasonably determined by the Borrower; (g) any interest in leased real property; (h) any property that would not otherwise be ABL Priority Collateral and is an Excluded Asset (as such term is defined in the Cash Flow Guarantee and Collateral Agreement); (i) Foreign Intellectual Property; and (4j) any ~~property or asset that would otherwise be included in the Collateral (~~Vehicles and ~~such property or asset shall not be deemed to constitute a part of the Collateral) if such property or~~ any other assets is subject to ~~a Lien permitted by Section 10.01(xiv)~~ certificate of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such Lientitle.

Appears in 2 contracts

Sources: Abl Credit Agreement (Hd Supply, Inc.), Guarantee and Collateral Agreement (Hd Supply, Inc.)

Certain Exceptions. ~~Notwithstanding~~ Section ~~1.1, no security interest is~~ 10.1 above shall not prohibit News Corp or ~~will be granted pursuant hereto in any right, title~~ its Controlled Affiliates from: (i) Acquiring or ~~interest~~ holding for Investment Purposes only (A) equity securities of any ~~Grantor~~ Person that has a class or series of equity securities that is registered under Section 12 of the Securities Exchange Act of 1934, as amended, and is traded on a national securities exchange or in the NASDAQ Stock Market (~~each~~ a "PUBLIC COMPANY") representing 10% or less of the total equity value or voting power of such Public Company or (aB) ~~through~~ equity securities representing less than 25% of both equity value and voting power of any Person that is not a Public Company (~~h) collectively, the “Excluded Collateral”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, licenses~~ except that News Corp or other contracts or agreements with or issued by Persons other than Holdings or a Subsidiary of Holdings or an Affiliate thereof (collectively, “Excluded Agreements”) that would otherwise be included in the Collateral (and such Excluded Agreements shall its Controlled Affiliates will not be deemed to ~~constitute a part of~~ have exceeded the ~~Collateral~~percentage thresholds contained in clauses (A) ~~for so long as, and~~ or (B) above to the extent ~~that~~that is ownership of equity securities exceeds such thresholds solely as a result of (x) the purchase or redemption by an issuer of its own securities or (y) holding an interest in a Person that satisfies the requirements of (B) above immediately prior to becoming a Public Company); PROVIDED, HOWEVER, that in any such case, News Corp or its Controlled Affiliates do not have Control over any such Public Company or non-Public Company. Equity securities shall be deemed held for "INVESTMENT PURPOSES" only if the ~~granting~~ holder has no right to, and in fact does not, participate in the business or financial affairs of the entity the securities of which are held, whether through the board of directors, an advisory committee or otherwise, other than the exercise of the rights attendant to such securities as provided by the corporate, partnership or limited liability company statutes governing such entity. (ii) Maintaining for Investment Purposes only a non-Controlling interest in a Person that only becomes "principally engaged in the business of providing Competing Program Services" (as defined below) following the acquisition by News Corp or its Controlled Affiliates after the date hereof of an interest in such Person; PROVIDED, HOWEVER, that (a) at the time of such ~~a security interest pursuant hereto~~ acquisition such Person was not principally engaged in the business of providing Competing Program Services, (b) at the time of such acquisition it was not reasonably foreseeable that such Person would ~~result~~ become principally engaged in the business of providing Competing Program Services, (c) such Person became principally engaged in providing Competing Program Services through no action by News Corp or its Controlled Affiliates and (d) News Corp and its Controlled Affiliates use their commercially reasonable efforts to cause such Person to divest such Competing Program Services or operate them in a ~~breach~~strategic alliance with HNLLC or WebMD International, ~~default~~ as applicable. (iii) Acquiring after the date hereof a direct or ~~termination~~ indirect interest (including a Controlling interest) in any Person which is not "principally engaged in the business of providing Competing Program Services," whether directly or through one or more of its Affiliates and holding such interest. For the purposes of this Section 10.4, a person will be deemed to be "principally engaged in the business of providing Competing Program Services" only if 20% or more of the operating revenues of such ~~Excluded Agreements~~ Person and its consolidated subsidiaries for the most recent twelve (~~in each case, except to~~ 12) month period ended before the ~~extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law)~~date of determination were revenues derived from Competing Program Services; provided, however, ~~that~~ if the operating revenues of such Person for such period exceed $100 million from Covered Internet Services or Covered TV Services, then News Corp and its Controlled Affiliates shall use their commercially reasonable efforts to cause such Person to divest such Competing Program Services or operate them in a ~~security interest in an Excluded Agreement in favor of~~ strategic alliance with HNLLC or WebMD International, as applicable. (iv) Acting solely as the ~~Secured Creditors shall attach immediately at such time as Grantor’s grant~~ distributor of a ~~security interest in such Excluded Agreement no longer results in a breach, default~~ Competing Program Service through the ownership or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant operation of a ~~security interest therein would result in a breach~~distribution platform, ~~default~~ including without limitation through the ownership or termination of such Excluded Agreement; or (b) equity interests in any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation operation of a ~~security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining~~ cable system or a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section 10.02(xiii) of the Credit Agreement, or is subject to any Liens permitted under Section 10.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such Liensatellite distribution system.

Appears in 1 contract

Sources: Master Strategic Alliance Agreement (Healtheon Webmd Corp)

Certain Exceptions. Notwithstanding ~~Section 1.1, no security interest is or will be granted pursuant hereto in any right, title or interest of any Grantor under or in (each of (a) through (h) collectively~~the foregoing, the ~~“Excluded Collateral”):~~ Lessee shall not assume liability for or indemnify, defend, protect, save and keep harmless pursuant to Section 14(a) hereof (ai) any Instruments, Contracts, Chattel Paper, General Intangibles, licenses or other contracts or agreements with or issued by Persons other than Holdings or a Subsidiary of Holdings or an Affiliate thereof (collectively, “Excluded Agreements”) that would otherwise be included in the Collateral (Indemnified Person from and ~~such Excluded Agreements shall not be deemed to constitute a part of the Collateral) for so long as, and~~ against any Claims to the extent ~~that~~arising out of any act, occurrence or omission (other than (x) an act or omission of, or an occurrence caused by, or attributable to, the ~~granting~~ Lessee or (y) for any Site, if the Lessee shall duly exercise and consummate the Sale Option with respect to such Site, occurring during or attributable to any period ending on or before the consummation of such Sale Option) on, under, in or from any Site after the Return Date with respect to such Site; (ii) any Indemnified Person for any Claim that is a ~~security interest pursuant hereto would result in~~ Tax or a ~~breach~~loss of Tax benefits or the costs and expenses of contesting any Tax or loss of tax benefits, ~~default or termination~~ except to provide indemnification under this Section 14 on an After-Tax Basis; (iii) any Indemnified Person for any Claim to the extent it results from any failure on the part of such ~~Excluded Agreements (~~Indemnified Person to comply with any representation, warranty, agreement or covenant of such Indemnified Person in ~~each case,~~ favor of the Lessee in any Operative Document except to the extent such failure to comply resulted from any ~~such breach,~~ default ~~or termination would be rendered ineffective~~ by the Lessee under ~~the UCC or other applicable law)~~any Operative Document; provided, however, that ~~a security interest in an Excluded Agreement in favor~~ the failure of any Indemnified Person to comply with any such representation, warranty, agreement or covenant shall not affect the ~~Secured Creditors shall attach immediately at such time as Grantor’s grant~~ rights of ~~a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and,~~ any other Indemnified Person hereunder; (iv) any Indemnified Person for any Claim to the extent ~~severable~~a court of competent jurisdiction shall have determined that such Claim results from acts which would constitute the willful misconduct or gross negligence (or, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result in a breach, default or termination of such Excluded Agreement; or (b) equity interests in any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of ~~foreign jurisdictions~~an Indemnified Person operating the business conducted at such Site, ~~those assets~~ negligence) of such Indemnified Person or a related Indemnified Person (it being agreed that for purposes of this clause (iv) the Owner Trustee shall be deemed a related Indemnified Person of the Certificate Holders only to the extent ~~that such grant of a security interest is prohibited by~~ it acts on the limitations of applicable local law; (g) any Equity Interests in a joint venture or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any written instructions of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section 10.02(xiii) of the Credit Agreement, or is subject to any Liens permitted under Section 10.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable lawCertificate Holders); provided ~~that immediately upon repayment~~ that: (A) negligence or gross negligence or willful misconduct will not be imputed to such Indemnified Person, the Certificate Holders or any related Indemnified Person solely as a result of the ~~Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security~~ Owner Trustee's ownership of or ground leasehold interest in ~~all~~ Sites; (B) the willful misconduct or gross negligence of ~~its rights~~an Indemnified Person shall not affect the rights of any other Indemnified Person Participation Agreement 63 hereunder; and (C) with respect to the Owner Trustee, ~~title and interests under~~ it shall not constitute willful misconduct or gross negligence of Wilmington Trust Company to rely on the written instructions of the Certificate Holders; or (v) a transfer of the Trust Estate by Certificate Holders or Owner Trustee (other than to Lessee or an Affiliate of Lessee or as the result of or during a Lease Event of Default or an Event of Loss). The indemnities set forth in ~~such asset~~this Section shall not constitute a guarantee, ~~Equipment~~ representation or ~~other property that is~~ warranty to any Indemnified Person of or as to the ~~subject~~ value or useful life of ~~such Lien~~any Site.

Appears in 1 contract

Sources: Participation Agreement (Marchfirst Inc)

Appears in 1 contract

Sources: u.s. Guarantee and Collateral Agreement (HSI IP, Inc.)

Certain Exceptions. Notwithstanding Section 1.1, no security interest is or will be granted pursuant hereto in any right, title or interest of any Grantor in, to or under ~~or in~~ (each of (a) through (ho) collectively, the “Excluded Collateral”): (a) any ~~Instruments~~fee-owned real property or any real property leasehold interests; (b) interest in any contracts (including Contracts and Contract Rights), ~~Contracts~~permits (including Permits), licenses, Accounts, General Intangibles (other than any Equity Interests), Payment Intangibles, Chattel Paper, General Intangibles, licenses or other contracts or agreements with or issued by Persons other than Holdings or a Subsidiary of Holdings or an Affiliate thereof (collectively, “Excluded Agreements”) that would otherwise be included in the Collateral (Letter-of-Credit Rights and such Excluded Agreements shall not be deemed to constitute a part of the Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Excluded Agreements (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided, however, that a security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that Promissory Notes if the grant of a security interest or Lien therein ~~would result in~~ is prohibited as a ~~breach, default~~ matter of law or ~~termination~~ under the terms of such ~~Excluded Agreement; or~~contracts (including Contracts and Contract Rights), permits (including Permits), licenses, Accounts, General Intangibles, Payment Intangibles, Chattel Paper, Letter-of-Credit Rights and Promissory Notes, in each case after giving effect to Article 9 of the applicable Uniform Commercial Code, other applicable law and principles of equity; (bc) ~~equity interests in~~ the Voting Equity Interests of (i) any first-tier ~~foreign~~ Foreign Subsidiary that is a CFC or of a FSHCO in excess of 65% of the ~~total~~ outstanding Voting Equity Interests ~~of such first-tier foreign Subsidiary;~~ thereof and (cii) any ~~“intent to use” Trademark applications for which~~ Subsidiary of (x) a ~~statement of use has not been filed~~ Foreign Subsidiary that is a CFC or (~~but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral)~~y) a FSHCO; (d) ~~any rights or property~~ assets subject to Capitalized Lease Obligations, purchase money financing and cash to secure letter of credit reimbursement obligations to the extent ~~that any valid~~ such Capitalized Lease Obligations, purchase money financing or letters of credit are permitted under the Credit Agreement and ~~enforceable law or regulation applicable to such rights or property prohibits~~ the ~~creation~~ terms thereof prohibit a grant of a security interest therein; (e) assets sold to a person who is not a Credit Party in compliance with the Credit Agreement; (f) assets owned by a Guarantor after the release of the guaranty of the Obligations of such Guarantor pursuant to the Credit Agreement; (g) motor vehicles (including Vehicles) and other goods subject to certificates of title other than to the extent a security interest therein can be perfected by a UCC filing; (h) any application for registration of a trademark filed with the United States Patent and Trademark Office (“PTO”) on an intent-to-use basis until such time (if any) as a statement of use or amendment to allege use is accepted by the PTO, at which time such trademark shall automatically become part of the Collateral and subject to the security interest of this Agreement; (i) Equity Interests in any Person other than Wholly-Owned Subsidiaries to the extent a pledge thereof is not permitted by the terms of such Subsidiary’s organizational or joint venture documents, after giving effect to Article 9 of the applicable Uniform Commercial Code; (j) Letter-of-Credit Rights with a value of less than $1,000,000 (to the extent a security interest therein cannot be perfected by a UCC filing) and Commercial Tort Claims with a value (as determined in good faith by the Lead Borrower) of less than $5,000,000; (k) those assets as to which the ~~Collateral~~ Administrative Agent ~~shall determine~~ and the Lead Borrower reasonably and mutually agree in ~~its sole discretion~~ writing that the cost of obtaining such a security interest or perfection thereof are excessive in relation to the ~~value~~ benefit to the Lenders of the security to be afforded thereby; (fl) in “margin stock” (within the ~~case~~ meaning of ~~foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law~~Regulation U); (gm) ~~any Equity Interests~~ Excluded Deposit Accounts described in ~~a joint venture or other non Wholly-Owned Subsidiary to~~ clauses (i) through (iii) of the ~~extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary~~definition thereof; (hn) ~~Excluded Deposit Accounts; and (i) any~~ Equity Interests of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit AgreementUnrestricted Subsidiaries; (2o) any ~~Equipment~~segregated deposits that constitute Permitted Liens under clause (iii), ~~machinery~~ (xii), (xiv), (xv), (xxviii), (xxxi), (xxxvi), (xxxviii) or ~~other fixed asset that would otherwise be included in the Collateral~~ (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(viixlii) of the Credit Agreement; (3) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section ~~10.02(xiii)~~ 10.01 of the Credit Agreement, ~~or is~~ in each case, that are prohibited from being subject to any Liens permitted under Section 10.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii)other Liens; and (4p) any ~~property or~~ asset to the extent the granting of a security interest in such asset results in material adverse tax consequence to Holdings, the Lead Borrower and/or its Subsidiaries, as reasonably determined in good faith by the Lead Borrower in consultation with the Administrative Agent; provided, however, that ~~would otherwise be included in the~~ Excluded Collateral ~~(and such property or asset~~ shall not ~~be deemed~~ include any Proceeds, substitutions or replacements of any Excluded Collateral referred to ~~constitute a part~~ in any of ~~the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding~~ clauses (~~i)(1~~a) through (4p) (unless such Proceeds, substitutions or replacements would constitute Excluded Collateral referred to in any of clauses (a) through (p)~~, for so long as, and~~ ). Notwithstanding anything to the ~~extent that~~contrary contained herein or in any other Credit Document, (i) no Grantor shall be required to perfect the ~~granting or existence of such a~~ security interest ~~pursuant hereto would result~~ in ~~a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case~~Fixtures, except to the extent ~~any such breach~~that the same are Equipment or are related to or located on Material Real Property, ~~default or termination would be rendered ineffective under~~ other than by the filing of a UCC ~~or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses~~ financing statement and (~~i)(1~~ii) ~~through (4), the relevant~~ no Grantor shall be ~~deemed~~ required to ~~have granted~~ take any action with respect to the creation or perfection of a security interest ~~in all of its rights, title and interests~~ or Liens under ~~or in such asset, Equipment or other property that is the subject of such Lien~~foreign law with respect to any Collateral.

Appears in 1 contract

Sources: Abl Security Agreement (PAE Inc)

Appears in 1 contract

Sources: Abl Guarantee and Collateral Agreement (Great North Imports, LLC)

Certain Exceptions. ~~Notwithstanding Section 1.1, no~~ No security interest is or will be granted pursuant hereto in any right, title or interest of any ~~Grantor~~ Assignor under or ~~in (each of (a) through (h) collectively, the “Excluded Collateral”):~~in: (a) any Instruments, Contracts, Chattel Paper, General Intangibles, licenses or other contracts or agreements with or issued by Persons other than Holdings or a Subsidiary of Holdings or an Affiliate thereof (collectively, “Excluded Agreements”) that would otherwise be included in the Collateral (and such Excluded Agreements shall not be deemed to constitute a part of the Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Excluded Agreements (in each case, except to the extent ~~any such~~ the granting of security interests therein can be made with the respective breach, default or termination ~~would be rendered~~ being ineffective under the UCC or other applicable law); provided, however, that a security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result in a breach, default or termination of such Excluded Agreement; or (b) equity interests in any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1i) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section ~~10.01(vi~~9.01(vi) of the Credit Agreement; (2ii) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section ~~10.01(vii~~9.01(vii) of the Credit Agreement; (3iii) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section ~~10.02(xiii~~9.02(xiii) of the Credit Agreement, or is subject to any Liens permitted under Section ~~10.01(xviii~~9.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (~~b)(iii~~b); and (4iv) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section ~~10.01(xiv~~9.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (~~i)(1~~b)(i) through (4iv), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each ~~case,~~ case except to the extent ~~any such~~ the granting of security interests therein can be made with the respective breach, default or termination ~~would be rendered~~ being ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such Lien.

Appears in 1 contract

Sources: Security Agreement (Bway Corp)

Certain Exceptions. ~~Notwithstanding Section 1.1, no~~ No security interest is or will be granted pursuant hereto in any right, title or interest of any Grantor under or in (~~each of (a) through (h)~~ collectively, the “Excluded ~~Collateral~~Assets”): (a) any Instruments, Contracts, Chattel Paper, ~~General~~ Intangibles, ~~licenses~~ Copyright Licenses, Patent Licenses, Trade-▇▇▇▇ Licenses, Trade Secret Licenses, Industrial Design Licenses or other contracts or agreements with or issued by Persons other than ~~Holdings or~~ the Parent Borrower, a Restricted Subsidiary ~~of Holdings~~ or an Affiliate ~~thereof~~ thereof, (collectively, “~~Excluded~~ Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such ~~Excluded~~ Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such ~~Excluded~~ Restrictive Agreements (in each case, except to the extent ~~any such breach~~that, ~~default or termination would be rendered ineffective under~~ pursuant to the ~~UCC~~ PPSA or other applicable law~~); provided~~, ~~however, that a~~ the granting of security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, interests therein can be made without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result resulting in a breach, default or termination of such ~~Excluded Agreement; or~~Restrictive Agreements); (b) ~~equity interests in~~ any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture Goods or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset property that would otherwise be included in the Security Collateral (and such ~~asset~~ Goods or other property shall not be deemed to constitute a part of the Security Collateral) if such ~~asset~~ Goods or other property (x) is subject to a Lien ~~permitted by Section 10.01(vi~~described in subsection 7.2(h) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) in respect of Purchase Money Obligations or Capitalized Lease Obligations, or a Lien described in subsection 7.2(o) (with respect to such a Lien described in subsection 7.2(h)) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement), and consists of Goods or other property financed or refinanced thereby (including through any financing or refinancing of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in subsection 7.2(h) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) in respect of Hedging Obligations, or a Lien described in subsection 7.2(o) (with respect to such a Lien described in subsection 7.2(h)) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y); (2c) any ~~Equipment, machinery or other fixed asset~~ property that (A) would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property (x) has been sold or otherwise transferred in connection with (i) a ~~sale-leaseback transaction permitted under Section 10.02(xiii~~Special Purpose Financing, (ii) a Sale and Leaseback Transaction the proceeds of which are applied pursuant to subsection 3.4 of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) if and to the extent required thereby or (iii) an Exempt Sale and Leaseback Transaction, ~~or is subject to any Liens permitted under Section 10.01(xviii~~(y) ~~of the Credit Agreement, or~~ constitutes the Proceeds or products of any property that has been so sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Grantor in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction) or (z) is subject to any Liens securing Indebtedness incurred in compliance with subsection 7.1(b)(ix) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement), or Liens permitted under subsection 7.2(k)(4) or 7.2(p)(12) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) or (B) is subject to any Permitted Lien and consists of property subject to any such sale and leaseback transaction or intangibles related thereto (but only for so long as such ~~Proceeds~~ Liens are in place); (d) Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of a proviso contained in the parenthetical to such definition; (e) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the ABL Credit Agreement, by applicable law or ~~products remain subject~~ regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary, or (ii) to the ~~Liens referenced above~~ extent that such security interests would result in ~~this clause~~ material adverse tax consequences as reasonably determined by the Canadian Borrower; (~~b)(iii)~~f) any interest in leased real property; (g) Foreign Intellectual Property; and (4h) any ~~property or asset that would otherwise be included in the Collateral (~~vehicles and ~~such property or asset shall not be deemed to constitute a part of the Collateral) if such property or~~ any other assets is subject to ~~a Lien permitted by Section 10.01(xiv)~~ the certificate of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law)title; provided that ~~immediately upon repayment~~ in this Section 3.3, “property” means all Chattel Paper, Documents of ~~the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4)~~Title, ~~the relevant Grantor shall be deemed to have granted a security interest in all of its rights~~Goods, ~~title~~ Instruments, Intangibles, Investment Property and ~~interests under or in such asset, Equipment or other property that is the subject of such Lien~~Money.

Appears in 1 contract

Sources: Abl Credit Agreement (Hd Supply, Inc.)

Certain Exceptions. ~~Notwithstanding Section 1.1, no~~ No security interest is or will be granted pursuant hereto in any right, title or interest of any Grantor under or in (~~each of (a) through (h)~~ collectively, the “Excluded ~~Collateral~~Assets”): (a) any Instruments, Contracts, Chattel Paper, ~~General~~ Intangibles, ~~licenses~~ Copyright Licenses, Patent Licenses, Trade-▇▇▇▇ Licenses, Trade Secret Licenses, Industrial Design Licenses (and any Foreign Intellectual Property equivalent of any of the foregoing) or other contracts or agreements with or issued by Persons other than ~~Holdings or~~ the Parent Borrower, a Restricted Subsidiary ~~of Holdings~~ or an Affiliate ~~thereof~~ thereof, (collectively, “~~Excluded~~ Restrictive Agreements”) that would otherwise be included in the Collateral (and such ~~Excluded~~ Restrictive Agreements shall not be deemed to constitute a part of the Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such ~~Excluded~~ Restrictive Agreements (in each case, except to the extent ~~any such breach~~that, ~~default or termination would be rendered ineffective under~~ pursuant to the ~~UCC~~ PPSA or other applicable law~~); provided~~, ~~however, that a~~ the granting of security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, interests therein can be made without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result resulting in a breach, default or termination of such ~~Excluded Agreement; or~~Restrictive Agreements); (b) ~~equity interests in~~ any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture Equipment or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset property that would otherwise be included in the Collateral (and such ~~asset~~ Equipment or other property shall not be deemed to constitute a part of the Collateral) if such ~~asset~~ Equipment or other property (x) is subject to a Lien ~~permitted by Section 10.01(vi~~described in subsection 7.2(h) of the Cash Flow Credit Agreement in respect of Purchase Money Obligations or Capitalized Lease Obligations, or a Lien described in subsection 7.2(o) (with respect to such a Lien described in subsection 7.2(h)) of the Cash Flow Credit Agreement~~; (2) any Equipment~~, ~~machinery~~ and consists of Equipment or other ~~fixed asset that would otherwise be included in the Collateral~~ property financed or refinanced thereby (~~and such Equipment, machinery~~ including through any financing or ~~other fixed asset shall not be deemed to constitute a part~~ refinancing of the ~~Collateral~~acquisition, leasing, construction or improvement of any such assets) if and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such ~~Equipment~~assets, ~~machinery~~ and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or ~~other fixed asset~~ improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien ~~permitted by Section 10.01(vii~~described in subsection 7.2(h) of the Cash Flow Credit Agreement in respect of Hedging Obligations, or a Lien described in subsection 7.2(o) (with respect to such a Lien described in subsection 7.2(h)) of the Cash Flow Credit Agreement;, and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of sub- clauses (i) through (iii) of this clause (y); and (3c) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property (x) has been sold or otherwise transferred in connection with (i) a ~~sale-leaseback transaction permitted under Section 10.02(xiii~~Special Purpose Financing, (ii) a Sale and Leaseback Transaction the proceeds of which are applied pursuant to subsection 3.4 of the ABL Credit ~~Agreement~~Agreement if and to the extent required thereby or (iii) an Exempt Sale and Leaseback Transaction, ~~or is subject to any Liens permitted under Section 10.01(xviii~~(y) ~~of the Credit Agreement, or~~ constitutes the Proceeds or products of any property that has been so sold or otherwise transferred ~~so long as~~ pursuant to such ~~Proceeds~~ Special Purpose Financing, Sale and Leaseback Transaction or ~~products remain subject to~~ Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the ~~Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (~~sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or ~~asset shall not be deemed to constitute a part of the Collateral~~Exempt Sale and Leaseback Transaction) ~~if such property~~ or ~~assets~~ (z) is subject to ~~a Lien permitted by Section 10.01(xiv~~any Liens securing Indebtedness incurred in compliance with subsection 7.1(b)(ix) of the Cash Flow Credit Agreement; , or Liens permitted under subsection 7.2(k)(iv) or 7.2(p)(xii) of the Cash Flow Credit Agreement. 3.3.1 Each Grantor acknowledges that certain of the Pledged Collateral of such Grantor may now or in the future consist of ULC Shares, and that it is the intention of the Canadian Collateral Agent and each ~~case~~ Grantor that neither the Canadian Collateral Agent nor any other Secured Party should under any circumstances prior to realization be held to be a “member” or a “shareholder”, as applicable, of a ULC for the purposes of any ULC Laws. Therefore, notwithstanding any provisions to the contrary contained in this Agreement, the ABL Credit Agreement or any other Loan Document, where a Grantor is the registered and beneficial owner of ULC Shares which are Pledged Collateral of such Grantor, such Grantor will remain the sole registered and beneficial owner of such ULC Shares until such time as such ULC Shares are effectively transferred into the name of the Canadian Collateral Agent, any other Secured Party, or any other Person on the books and records of the applicable ULC. Accordingly, each Grantor shall be entitled to receive and retain for its own account any dividend on or other distribution, if any, in respect of such ULC Shares (except for any dividend or distribution comprised of Pledged Security Certificates of such Grantor, which shall be delivered to the Canadian Collateral Agent to hold hereunder) and shill have the right to vote such ULC Shares and to control the direction, management and policies of the applicable ULC to the same extent as such Grantor would if such ULC Shares were not pledged to the Canadian Collateral Agent pursuant ~~to preceding clauses~~ hereto. Nothing in this Agreement, the ABL Credit Agreement or any other Loan Document is intended to, and nothing in this Agreement, the ABL Credit Agreement or any other Loan Document shall, constitute the Canadian Collateral Agent, any other Secured Party, or any other Person other than the applicable Grantor, a member or shareholder of a ULC for the purposes of any ULC Laws (~~i)(1) through (4~~whether listed or unlisted, registered or beneficial), ~~for so long as,~~ until such time as notice is given to such Grantor and ~~to the extent that, the granting or existence of such a security interest~~ further steps are taken pursuant hereto ~~would result~~ or thereto so as to register the Canadian Collateral Agent, any other Secured Party, or such other Person, as specified in ~~a breach~~such notice, ~~default or termination~~ as the holder of ~~any agreement relating to~~ the ~~respective Lien or obligations secured thereby (in each case, except to~~ ULC Shares. To the extent any provision hereof would have the effect of constituting the Canadian Collateral Agent or any other Secured Party as a member or a shareholder, as applicable, of any ULC prior to such ~~breach~~time, ~~default~~ such provision shall be severed herefrom and shall be ineffective with respect to ULC Shares which are Pledged Collateral of any Grantor without otherwise invalidating or ~~termination would~~ rendering unenforceable this Agreement or invalidating or rendering unenforceable such provision insofar as it relates to Pledged Collateral of any Grantor which is not ULC Shares. Except upon the exercise of rights of the Canadian Collateral Agent to sell, transfer or otherwise dispose of ULC Shares in accordance with this Agreement, each Grantor shall not cause or permit, or enable a Pledged Issuer that is a ULC to cause or permit, the Canadian Collateral Agent or any other Secured Party to: (a) be ~~rendered ineffective under~~ registered as a shareholder or member of such Pledged Issuer; (b) have any notation entered in their favour in the ~~UCC~~ share register of such Pledged Issuer; (c) be held out as shareholders or members of such Pledged Issuer; (d) receive, directly or indirectly, any dividends, property or other ~~applicable law); provided that immediately upon repayment~~ distributions from such Pledged Issuer by reason of the ~~Indebtedness and/or other monetary obligation secured by~~ Canadian Collateral Agent holding the Security Interests over the ULC Shares; or (e) act as a ~~Lien referenced~~ shareholder of such Pledged Issuer, or exercise any rights of a shareholder including the right to attend a meeting of shareholders of such Pledged Issuer or to vote its ULC Shares. 3.3.2 The Collateral shall not include the last day of the term of any lease or agreement therefor but upon the enforcement of the security interest granted hereby in ~~clauses (i)(1) through (4)~~the Collateral, the ~~relevant Grantor~~ Grantors or any of them shall ~~be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject~~ stand possessed of such ~~Lien~~last day in trust to assign the same to any person acquiring such term.

Appears in 1 contract

Sources: Canadian Guarantee and Collateral Agreement (HSI IP, Inc.)

Appears in 1 contract

Sources: Guarantee and Collateral Agreement (Great North Imports, LLC)

Certain Exceptions. ~~Notwithstanding Section 1.1, no~~ No security interest is or will be granted pursuant hereto in any right, title or interest of any ~~Grantor~~ Assignor under or ~~in (each of (a) through (h) collectively, the “Excluded Collateral”):~~in: (a) any Instruments, Contracts, Chattel Paper, General Intangibles, licenses or other contracts or agreements with or issued by Persons other than Holdings or a Subsidiary of Holdings or an Affiliate thereof (collectively, “Excluded Agreements”) that would otherwise be included in the Collateral (and such Excluded Agreements shall not be deemed to constitute a part of the Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Excluded Agreements (in each case, except to the extent ~~any such~~ the granting of security interests therein can be made with the respective breach, default or termination ~~would be rendered~~ being ineffective under the UCC or other applicable law); provided, however, that a security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result in a breach, default or termination of such Excluded Agreement; or (b) equity interests in any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1i) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section ~~10.01(vi~~9.01(vi) of the Credit Agreement; (2ii) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section ~~10.01(vii~~9.01(vii) of the Credit Agreement; (3iii) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section ~~10.02(xiii~~9.02(xiii) of the Credit Agreement, or is subject to any Liens permitted under Section ~~10.01(xviii~~9.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (~~b)(iii~~d); and (4iv) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section ~~10.01(xiv) of the Credit Agreement~~9.01(xiv); in each case pursuant to preceding clauses (~~i)(1~~b)(i) through (4iv), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each ~~case,~~ case except to the extent ~~any such~~ the granting of security interests therein can be made with the respective breach, default or termination ~~would be rendered~~ being ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such Lien.

Appears in 1 contract

Sources: Security Agreement (Bway Corp)

Certain Exceptions. ~~Notwithstanding Section 1.1, no~~ No security interest is or will be granted pursuant ------------------ hereto in any right, title or interest of any ~~Grantor~~ Granting Party under or ~~in (each of (a) through (h) collectively, the “Excluded Collateral”):~~in: (a) any Instruments, Contracts, Chattel Paper, General Intangibles, ~~licenses~~ Copyright Licenses, Patent Licenses, Trademark Licenses or other contracts or agreements with or issued by Persons other than ~~Holdings or~~ a Subsidiary of ~~Holdings or an Affiliate thereof~~ the Company (collectively, “"Excluded Agreements”") that would otherwise be included in the ------------------- Security Collateral (and such Excluded Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Excluded Agreements (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided, however, that a security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result in a breach, default or termination of such Excluded AgreementAgreements; or (b) ~~equity interests in~~ any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset Equipment that would otherwise be included in the Security Collateral (and such ~~asset~~ Equipment shall not be deemed to constitute a part of the Security Collateral) if such ~~asset~~ Equipment is subject to ~~a Lien~~ Permitted Liens permitted ~~by Section 10.01(vi~~under clause (h)(ii) of the ~~Credit Agreement~~definition of "Permitted Liens" in the Investment Agreement that secure Purchase Money Obligations or Capitalized Lease Obligations not exceeding $25,000,000 at any one time outstanding; (2c) any ~~Equipment, machinery or other fixed asset that would otherwise be included in~~ Capital Stock of Holdings I GmbH held by the ~~Collateral~~ Primary Borrower (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section 10.02(xiii) of the Credit Agreement, or is subject to any Liens permitted under Section 10.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such ~~Proceeds~~ Capital Stock is equal to or ~~products remain subject~~ less than 1% of the Capital Stock of Holdings I GmbH); (d) Capital Stock of any Subsidiary listed in Schedule 8 (so long as such Capital Stock is not required to be pledged hereunder pursuant to the ~~Liens referenced above in this clause (b)(iii~~Investment Agreement); ~~and~~or (4e) any property or asset of such Granting Party to the extent (and solely to the extent) that a security interest or other Lien shall not at any time have been created in respect thereof securing Bank Indebtedness or in favor of or for the benefit of any holder of Bank Indebtedness or any agent or representative thereof (including without limitation the Administrative Agent); provided that (i) any property or asset that ~~would~~ shall -------- at any time be or have been subject to any such security interest or other Lien shall not be excluded from the Security Collateral by operation of this clause (g), regardless of whether such security interest or other Lien is subsequently released, extinguished or otherwise terminated, and (ii) this clause (g) shall terminate and be ~~included in the Collateral (~~of no further force or effect, and any such property or asset shall ~~not be deemed to~~ thereupon and thereafter constitute a part of the Security Collateral~~) if such property or assets is subject to~~ , from and after the occurrence of a ~~Lien permitted by~~ "Termination" (as defined in Section ~~10.01(xiv)~~ 11 of the ~~Credit~~ Intercreditor Agreement~~; in each case pursuant to preceding clauses (i)(1) through (4~~), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such Lien.

Appears in 1 contract

Sources: Guarantee and Collateral Agreement (Acterna Corp)

Certain Exceptions. ~~Notwithstanding Section 1.1, no~~ No security interest is or will be granted pursuant ~~hereto~~ to this Agreement or any other Security Document in any right, title or interest of any ~~Grantor~~ Granting Party under or in in, and “Collateral” and “Pledged Collateral” shall not include the following (~~each of (a) through (h)~~ collectively, the “Excluded ~~Collateral~~Assets”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, ~~licenses~~ Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than ~~Holdings or~~ Holding, a Subsidiary of ~~Holdings~~ Holding or the Borrower or an Affiliate ~~thereof~~ of any of the foregoing (collectively, “~~Excluded~~ Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such ~~Excluded~~ Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such ~~Excluded~~ Restrictive Agreements (in each case, except to the extent ~~any such breach~~that, ~~default or termination would be rendered ineffective under~~ pursuant to the ~~UCC or~~ Code and other applicable law~~); provided~~, ~~however, that a~~ the granting of security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, interests therein can be made without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result resulting in a breach, default or termination of such ~~Excluded Agreement; or~~Restrictive Agreements); (b) ~~equity interests in~~ any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture Equipment or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in subsection 7.2(h) (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or (o) (with respect to such Liens described in such subsection 7.2(h)) of the Credit Agreement (or any corresponding provision of any Additional Credit Facility; provided that such provision is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent) (but in each case only for so long as such Liens are in place) or (y) is subject to any Lien in respect of Hedging Obligations permitted by subsection 7.2 of the Credit Agreement as a “Permitted Lien” pursuant to clause (h) of subsection 7.2 of the Credit Agreement (or any corresponding provision of any Additional Credit Facility; provided that such provision is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent) (but in each case only for so long as such Liens are in place), and, in the case of such other property, such other property consists solely of (i) cash, Cash Equivalents or Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions, or to such Hedging Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations or (2) any other agreements, instruments or documents related to any such Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this subclause (y); (c) any property (and/or related rights and/or assets) (A) that would otherwise be included in the Security Collateral (and such property (and/or related rights and/or assets) shall not be deemed to constitute a part of the Security Collateral) if such property (x) has been sold or otherwise transferred in connection with (i) a ~~sale-leaseback transaction permitted under Section 10.02(xiii~~Special Purpose Financing, (ii) a Sale and Leaseback Transaction the proceeds of which are applied pursuant to subsection 3.4 of the Credit ~~Agreement~~Agreement (or any corresponding provision of any Additional Credit Facility; provided that such provision is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) if and to the extent required thereby or (iii) an Exempt Sale and Leaseback Transaction, or ~~is subject to any Liens permitted under Section 10.01(xviii~~(y) ~~of the Credit Agreement, or~~ constitutes the Proceeds or products of any property that has been so sold or otherwise transferred ~~so long as~~ pursuant to such ~~Proceeds~~ Special Purpose Financing, Sale and Leaseback Transaction or ~~products remain subject to~~ Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the ~~Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (~~sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or ~~asset shall not be deemed to constitute a part of the Collateral~~Exempt Sale and Leaseback Transaction) ~~if such property~~ or ~~assets~~ (z) is subject to ~~a Lien permitted by Section 10.01(xiv~~any Liens securing Indebtedness incurred in compliance with subsection 7.1(b)(ix) of the Credit Agreement; , or Liens permitted under subsection 7.2(k)(iv) or 7.2(p)(xii) of the Credit Agreement (or in each case ~~pursuant~~ any corresponding provision of any Additional Credit Facility; provided that such provision is not materially less favorable to ~~preceding clauses~~ the Lenders than the corresponding provision in the Credit Agreement (~~i)(1~~as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent); (d) ~~through~~ Capital Stock (4including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock; (e) any interest in leased real property (including Fixtures related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters)~~, for so long as,~~ ; (f) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $15,000,000 individually; (g) any Vehicles and any assets subject to certificate of title; (h) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $15,000,000; (i) assets to the extent ~~that,~~ the granting or ~~existence~~ perfecting of ~~such~~ a security interest ~~pursuant hereto~~ in such assets would result in ~~a breach~~costs or other consequences to Holding or any of its Subsidiaries as reasonably determined in writing by the Borrower and the Administrative Agent, ~~default~~ that are excessive in view of the benefits that would be obtained by the Secured Parties; (j) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, applicable law or ~~termination~~ regulation or the organizational or joint venture documents of any ~~agreement relating to the respective Lien or obligations secured thereby~~ non-wholly owned Subsidiary (including permitted liens, leases and licenses) (in each case, ~~except~~ after giving effect to the applicable anti-assignment provisions of the Code, other than proceeds and receivables thereof to the extent ~~any such breach, default or termination would be rendered ineffective~~ that their assignment is expressly deemed effective under the ~~UCC~~ Code notwithstanding such prohibitions), or to the extent that such security interests would result in adverse tax consequences to Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its Subsidiaries to enter into any security agreements or pledge agreements governed by foreign law); (k) any assets specifically requiring perfection through control (including cash, cash equivalents, deposit accounts or other bank or securities accounts but excluding the Collateral Proceeds Account) to the extent the security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code of any applicable ~~law); provided that immediately upon repayment~~ jurisdiction or, in the case of Pledged Stock, by being held by the Collateral Agent, any Collateral Representative or an Additional Agent as agent for the Collateral Agent; (l) Foreign Intellectual Property; (m) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof; (n) any Capital Stock and other securities of a Subsidiary of the ~~Indebtedness and/or~~ Borrower to the extent that the pledge of or grant of any other ~~monetary obligation secured by a~~ Lien ~~referenced~~ on such Capital Stock and other securities for the benefit of any holders of securities results in ~~clauses~~ the Borrower or any of its Restricted Subsidiaries being required to file separate financial statements for such Subsidiary with the Securities and Exchange Commission (~~i)(1~~or any other governmental authority) ~~through~~ pursuant to either Rule 3-10 or 3-16 of Regulation S-X under the Securities Act, or any other law, rule or regulation as in effect from time to time, but only to the extent necessary to not be subject to such requirement; (4)o) any assets or property of Holding, other than the ~~relevant Grantor shall be deemed to have granted~~ Pledged Stock of the Borrower; and (p) any Goods in which a security interest is not perfected by filing a financing statement in ~~all~~ the applicable Grantor’s jurisdiction of ~~its rights, title and interests under or in such asset, Equipment or other property that is the subject of such Lien~~organization.

Appears in 1 contract

Sources: Guarantee and Collateral Agreement (Servicemaster Co, LLC)

Certain Exceptions. Notwithstanding anything to the contrary in Section ~~1.1~~6.6(a), ~~no security interest is~~ nothing contained in this Agreement shall prevent or ~~will be granted pursuant hereto in any right, title~~ restrict the Company or ~~interest of any Grantor under or in (each of (a) through (h) collectively,~~ the ~~“Excluded Collateral”):~~Company Board from: (ai) (A) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act (or any ~~Instruments~~similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer) or (B) making any “stop-look-and-listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act (or any similar communications to the stockholders of the Company); provided that, ~~Contracts, Chattel Paper, General Intangibles, licenses~~ any such disclosure referred to in the preceding clauses (A) or ~~other contracts or agreements with or issued by Persons other than Holdings or a Subsidiary of Holdings or an Affiliate thereof~~ (~~collectively, “Excluded Agreements”~~B) that ~~would otherwise be included in the Collateral (and such Excluded Agreements~~ involves an Acquisition Proposal shall ~~not~~ be deemed to ~~constitute~~ be a ~~part~~ Change of Recommendation unless the ~~Collateral~~Company Board reaffirms the Recommendation in such disclosure; (ii) ~~for~~ prior to obtaining the Company Requisite Vote, contacting any Person or group and their respective Representatives who has made an Acquisition Proposal once and solely to ask questions to clarify (and not to negotiate or engage in any discussions) the material terms of such Acquisition Proposal; (iii) prior to obtaining the Company Requisite Vote, providing access to the Company’s or any of its Subsidiaries’ properties, books and records and providing information in response to a request therefor by a Person or group who has made an Acquisition Proposal that did not result from a material breach of this Section 6.6 if the Company Board (A) shall have determined in good faith, after consultation with the Company’s outside legal counsel and financial advisors, that such Acquisition Proposal constitutes or could reasonably be expected to constitute, result in or lead to a Superior Proposal and (B) has received from the Person so ~~long as~~requesting such information an executed Acceptable Confidentiality Agreement; provided that the Company shall promptly provide to Parent and Merger Sub any non-public information that is provided to any Person given such access that was not previously made available to Parent or Merger Sub; (iv) prior to obtaining the Company Requisite Vote, engaging in any negotiations or discussions regarding an Acquisition Proposal and any changes thereto with any Person or group, and their respective Representatives and its potential sources of financing, who has made an Acquisition Proposal that did not result from a material breach of this Section 6.6 (which, for the avoidance of doubt, such negotiations or discussions need not be solely for clarification purposes) if the Company Board shall have determined in good faith, after consultation with the Company’s outside legal counsel and financial advisors, that such Acquisition Proposal could reasonably be expected to constitute, result in or lead to a Superior Proposal; (v) prior to obtaining the Company Requisite Vote, making a Change of Recommendation to the extent ~~that, the granting of such a security interest pursuant hereto would result in a breach, default~~ permitted under Section 6.6(c) or ~~termination of such Excluded Agreements (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law~~Section 6.6(d); ~~provided, however, that a security interest in an Excluded Agreement in favor~~ or (vi) resolving or agreeing to take any of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder andforegoing actions, to the extent ~~severable, shall attach immediately to any portion of~~ such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein actions would result in a breach, default or termination of such Excluded Agreement; or (b) equity interests in any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the ~~governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and~~ foregoing clauses (i) any of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section 10.02(xiii) of the Credit Agreement, or is subject to any Liens permitted under Section 10.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4v), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such Lien.

Appears in 1 contract

Sources: Merger Agreement (Cypress Semiconductor Corp /De/)

Appears in 1 contract

Sources: Guarantee and Collateral Agreement (HSI IP, Inc.)

Appears in 1 contract

Sources: Notes Collateral Agreement (US Foods Holding Corp.)

Appears in 1 contract

Sources: Guarantee and Collateral Agreement (Great North Imports, LLC)

Certain Exceptions. (i) Notwithstanding ~~Section 1.1~~any other provision set forth in this Agreement to the contrary, ~~no security interest is~~ any Bank may at any time and from time to time pledge as collateral for advances, assign or ~~will~~ endorse for discount, or otherwise transfer all or any portion of its rights under this Agreement and its Note, if any, to any Federal Reserve Bank pursuant to the Federal Reserve Act and related regulations of the Board of Governors of the Federal Reserve System (as such act or regulations are then or thereafter in effect or any successor act or regulations), as well as any applicable operating circular or other requirements of such Board of Governors or Federal Reserve Bank (as then or thereafter in effect). Any Federal Reserve Bank may at any time and from time to time subsequently transfer all or any portion of the rights acquired by such Bank pursuant to this subsection to any Person. No such pledge, assignment, endorsement or other transfer shall or have the effect of releasing the Administrative Agent, any Bank or the Borrower from its respective obligations or conferring any obligations on the pledgee, assignee, endorsee or transferee, as the case may be, under this Agreement or any Note. The requirements of subsections (b), (c) and (d) shall be ~~granted pursuant hereto~~ deemed inapplicable to pledges, assignments, endorsements or other transfers permitted by this subsection. (ii) Notwithstanding anything to the contrary contained herein, any Bank (a “Granting Bank”) may grant to a special purpose funding vehicle (an “SPC”) of such Granting Bank, identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any ~~right, title or interest~~ part of any ~~Grantor under or in (each of~~ Loan that such Granting Bank would otherwise be obligated to make to the Borrower pursuant to this Agreement, provided that (a) ~~through~~ nothing herein shall constitute a commitment to make any Loan by any SPC and (hb) ~~collectively~~if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan or fund any other obligation required to be funded by it hereunder, the ~~“Excluded Collateral”): (a)~~ Granting Bank shall be obligated to make such Loan or fund such obligation pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall satisfy the obligation of the Granting Bank to make Loans to the same extent, and as if, such Loan were made by the Granting Banks. Each party hereto hereby agrees that no SPC shall be liable for any ~~Instruments, Contracts, Chattel Paper, General Intangibles, licenses or other contracts or agreements with or issued by Persons other than Holdings or~~ payment under this Agreement for which a ~~Subsidiary of Holdings or an Affiliate thereof (collectively, “Excluded Agreements”) that~~ Bank would otherwise be included in the Collateral (and such Excluded Agreements shall not be deemed to constitute a part of the Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Excluded Agreements (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided, however, that a security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result in a breach, default or termination of such Excluded Agreement; or (b) equity interests in any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section 10.02(xiii) of the Credit Agreement, or is subject to any Liens permitted under Section 10.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4)liable, for so long as, and to the ~~extent~~ extent, the related Granting Bank makes such payment. In furtherance of the foregoing, each party hereto hereby agrees that, prior to the ~~granting~~ date that is one year and one day after the payment in full of all outstanding senior indebtedness of any SPC, it will not institute against or ~~existence~~ join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings, under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 11.4 any SPC may (A) with notice to, but without the prior written consent of, the Borrower or the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loan to its Granting Bank or to any financial institutions providing liquidity and/or credit facilities to or for the account of such SPC to fund the Loans made by such SPC or to support the securities (if any) issued by such SPC to fund such Loans and (B) disclose on a ~~security interest pursuant hereto would result in~~ confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of a ~~breach~~surety, ~~default~~ guarantee or ~~termination~~ credit or liquidity enhancement to such SPC. Notwithstanding any other provisions of this Agreement, the Borrower agrees that it will not use the proceeds of any ~~agreement relating~~ Loan made by a Bank which is funded through an SPC to be used to purchase or carry Margin Stock if such Bank (i) notifies the Borrower that its Loan will be funded through an SPC and (ii) requests the Borrower prior to the ~~respective Lien or obligations secured thereby (in each case, except~~ Effective Date not to use the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all proceeds of its ~~rights, title and interests under or in~~ Loan for such ~~asset, Equipment or other property that is the subject of such Lien~~purpose.

Appears in 1 contract

Sources: 364 Day Credit Agreement (Eastman Kodak Co)

Appears in 1 contract

Sources: Guarantee and Collateral Agreement (Hd Supply, Inc.)

Certain Exceptions. Notwithstanding Section 1.1, no security interest is or will be granted pursuant hereto in any right, title or interest of any Grantor under or in (each of (a) through (ho) collectively, the “Excluded Collateral”): (a) any leases, licenses, Instruments, Contracts, Chattel Paper, General Intangibles, ~~licenses~~ Permits, governmental licenses, state or local franchises, charters or authorizations or other contracts or agreements with or issued by Persons other than ~~Holdings~~ the Borrower or ~~a Subsidiary~~ Subsidiaries of ~~Holdings~~ the Borrower or an Affiliate thereof (collectively, “Excluded Agreements”) that would otherwise be included in the Collateral (and such Excluded Agreements shall not be deemed to constitute a part of the Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would invalidate or result in a violation, breach, default or termination of such Excluded Agreements or create a right of termination in favor of, or require the consent of, any party thereto (in each case other than the Borrower or a Subsidiary Guarantor) (in each case, except to the extent any such violation, breach, ~~default~~ default, termination, right or ~~termination~~ consent would be rendered ineffective under the UCC or other applicable law); provided, however, that a security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately (i) at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a violation, breach, default or termination thereof or thereunder ~~and~~or no longer creates such right of termination or such right has been waived or requires such consent or such consent has been obtained, (ii) to the extent severable, ~~shall attach immediately~~ to any portion of such Excluded Agreement that does not result in a respective violation, breach, ~~default~~ default, termination or ~~termination~~ right or consent thereof or ~~thereunder, including, without limitation,~~ thereunder and (iii) to any proceeds or receivables of such Excluded ~~Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees~~ Agreement that ~~it shall~~ are not ~~amend any material~~ Excluded ~~Agreement in effect as of the date hereof so that the grant of a security interest therein would result in a breach, default or termination of such Excluded Agreement~~Collateral; or (b) ~~equity interests~~ Equity Interests in any ~~first-tier foreign Subsidiary~~ CFC or FSHCO, in each case, in excess of 65% of the total outstanding Voting Equity Interests of such ~~first-tier foreign Subsidiary~~CFC or FSHCO, as applicable, that is directly owned by such Grantor; (c) any ~~“intent to use” Trademark applications for which a statement of~~ intent-to-use ~~has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject~~ trademark application prior to the ~~Lien granted herein~~ filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and ~~deemed included~~ solely during the period, if any, in which, the ~~Collateral)~~grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable federal law; (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein, except to the extent such prohibition is unenforceable after giving effect to the applicable provisions of the UCC or other applicable law; (e) those assets ~~as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value~~ located outside of the ~~security to be afforded thereby;~~ United States and Canada (~~f) in the case of foreign jurisdictions, those assets~~ solely to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section 10.02(xiii) of the Credit Agreement, or is subject to any Liens permitted under Section 10.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination action would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or required in such ~~asset, Equipment or~~ other ~~property that is the subject of~~ jurisdictions to obtain such ~~Lien.~~security interests);

Appears in 1 contract

Sources: Abl Credit Agreement (Performance Sports Group Ltd.)

Appears in 1 contract

Sources: Guarantee and Collateral Agreement (Acterna Corp)

Certain Exceptions. Notwithstanding Section 1.1, no security interest is or will be granted pursuant hereto in any right, title or interest of any Grantor in, to or under ~~or in~~ (each of clauses (a) through (hp) collectively, the “Excluded Collateral”): (a) any ~~Instruments~~fee-owned real property that is not Material Real Property and any real property leasehold interests; (b) interest in any contracts (including Contracts and Contract Rights), ~~Contracts~~permits, licenses, leases, Accounts, General Intangibles (other than any Equity Interests), Payment Intangibles, Chattel Paper, ~~General Intangibles~~Letter-of-Credit Rights, licenses or other contracts or agreements with or issued by Persons other than Holdings or a Subsidiary of Holdings or an Affiliate thereof (collectively, “Excluded Agreements”) that would otherwise be included in the Collateral (Promissory Notes and such Excluded Agreements shall not be deemed to constitute a part of the Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Excluded Agreements (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided, however, that a security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that Health-Care-Insurance Receivables if the grant of a security interest or Lien therein ~~would result in~~ is prohibited as a ~~breach~~matter of law, ~~default~~ rule or ~~termination~~ regulation or under the terms of such ~~Excluded Agreement; or~~contracts (including Contracts and Contract Rights), permits, licenses, leases, Accounts, General Intangibles, Payment Intangibles, Chattel Paper, Letter-of-Credit Rights, Promissory Notes and Health-Care-Insurance Receivables, in each case after giving effect to any applicable Uniform Commercial Code and other applicable law; (bc) ~~equity interests in~~ the Voting Equity Interests of (i) any ~~first-tier foreign~~ Foreign Subsidiary that is a CFC in excess of 65% of the ~~total~~ outstanding Voting Equity Interests ~~of such first-tier foreign Subsidiary;~~ thereof and (cii) any ~~“intent to use” Trademark applications for which a statement~~ FSHCO in excess of ~~use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to~~ 65% of the ~~Lien granted herein and deemed included in the Collateral)~~outstanding Voting Equity Interests thereof; (d) ~~any rights or property~~ assets subject to Capitalized Lease Obligations, purchase money financing and cash to secure letter of credit reimbursement obligations to the extent ~~that any valid~~ such Capitalized Lease Obligations, purchase money financing or letters of credit are permitted under the Credit Agreement and ~~enforceable law or regulation applicable to such rights or property prohibits~~ the ~~creation~~ terms thereof prohibit a grant of a security interest therein; (e) assets sold to a person who is not a Credit Party in compliance with the Credit Agreement; (f) assets owned by a Subsidiary after the release of the guaranty of the Obligations of such Subsidiary pursuant to the Credit Agreement; (g) Vehicles (to the extent a security interest therein cannot be perfected by a UCC filing); (h) any application for registration of a trademark filed with the PTO on an intent-to-use basis until such time (if any) as a statement of use or amendment to allege use is accepted by the PTO, at which time such trademark shall automatically become part of the Collateral and subject to the security interest of this Agreement; (i) Equity Interests in any Person (i) other than the Borrowers and Wholly-Owned Subsidiaries to the extent a pledge thereof is not permitted by the terms of such Person’s charter documents or joint venture or shareholders agreements and other organizational documents and (ii) to the extent a pledge thereof is not permitted by any law, rule or regulation after giving effect to the applicable anti-assignment provisions of the UCC and other applicable law; (j) any Letter-of-Credit Right (to the extent a security interest in such Letter-of-Credit Right cannot be perfected by a UCC filing) and any Commercial Tort Claim, in each case, with a value (as determined in good faith by Lead Borrower) of less than $11,250,000; (k) those assets as to which the Collateral Agent ~~shall determine~~ and Lead Borrower reasonably and mutually agree in ~~its sole discretion~~ writing that the cost of obtaining such a security interest or perfection thereof are excessive in relation to the ~~value~~ benefit to the Secured Creditors of the security to be afforded thereby; (fl) “margin stock” (within the meaning of Regulation U); (m) Excluded Accounts described in clauses (i) through (iii) of the ~~case~~ definition thereof; (n) Equity Interests of ~~foreign jurisdictions~~Unrestricted Subsidiaries; (o) any segregated deposits that constitute Permitted Liens under clause (xii), ~~those assets~~ (xiv), (xv), (xxii), (xxvi), (xxviii), (xxxi), (xxxiv), (xxxvi), (xxxviii) or (xlii) of Section 10.01 of the Credit Agreement, in each case, that are prohibited from being subject to other Liens; and (p) any asset to the extent ~~that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture or other non Wholly-Owned Subsidiary to the extent that~~ granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section 10.02(xiii) of the Credit Agreement, or is subject to any Liens permitted under Section 10.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a ~~breach~~material adverse tax consequence to Holdings and/or its Subsidiaries, ~~default~~ as reasonably determined in good faith by Lead Borrower and notified in writing to the Administrative Agent; provided, however, that Excluded Collateral shall not include any Proceeds, substitutions or ~~termination~~ replacements of any ~~agreement relating~~ Excluded Collateral referred to in any of clauses (a) through (p) (unless such Proceeds, substitutions or replacements would constitute Excluded Collateral referred to in any of clauses (a) through (p)). Notwithstanding anything to the ~~respective Lien~~ contrary contained herein or ~~obligations secured thereby~~ in any other Credit Document, (i) no Grantor shall be required to perfect a security interest in Fixtures (other than with respect to Material Real Property), (ii) no Grantor shall be required to take any action with respect to the creation or perfection of a security interest or Liens under foreign law with respect to any Collateral, in each case, ~~except to the extent any such breach~~unless, ~~default or termination would be rendered ineffective~~ at Lead Borrower’s election, a Foreign Subsidiary is designated as a Guarantor under the ~~UCC or other applicable law); provided that immediately upon repayment of~~ Credit Documents after the ~~Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses~~ Closing Date, (~~i)(1~~iii) ~~through (4), the relevant~~ no Grantor shall be ~~deemed~~ required to ~~have granted a security interest in all of its rights~~deliver landlord lien waivers, ~~title and interests under~~ estoppels, bailee waivers or ~~in such asset~~collateral access letters, ~~Equipment~~ (iv) no Grantor shall be required to deliver any “control agreement” or other ~~property that is the subject~~ control arrangements with respect to any Deposit Account, Securities Account or Commodity Account of such ~~Lien~~Grantor except as set forth in Section 3.9, and (v) no Grantor shall be required to comply with the Federal Assignment of Claims Act (or any state or municipal equivalent).

Appears in 1 contract

Sources: First Lien Term Loan Credit Agreement (VERRA MOBILITY Corp)

Appears in 1 contract

Sources: Guarantee and Collateral Agreement (Servicemaster Co)

Appears in 1 contract

Sources: Guarantee and Collateral Agreement (Servicemaster Co)

Certain Exceptions. Notwithstanding ~~Section 1.1, no security interest is~~ the foregoing or ~~will~~ anything to the contrary that may be ~~granted pursuant hereto~~ contained elsewhere in ~~any right, title or interest of any Grantor under or in (each of (a) through (h) collectively, the “Excluded Collateral”):~~this Agreement: (a) The use restrictions and confidentiality obligations set forth in Section 3.1 above shall not apply to any ~~Instruments~~of the Licensed Information which is or becomes lawfully available from any third parties without breaching any confidentiality agreement, ~~Contracts, Chattel Paper, General Intangibles, licenses~~ including a breach of this Agreement by Seller or any of the Seller-Related Parties; (b) Without breaching or violating this Agreement: (i) Seller or any of the Seller-Related Parties may disclose or furnish any of the Licensed Information pursuant to subpoena or other ~~contracts~~ legal process, or ~~agreements~~ upon making a good faith determination (after consultation with ~~or issued by Persons other than Holdings or a Subsidiary of Holdings or an Affiliate thereof (collectively, “Excluded Agreements”~~its outside legal counsel) that ~~would otherwise~~ such disclosure is required to be ~~included~~ made under applicable law , but in any such event it shall be obligated to comply with the ~~Collateral~~ procedure set forth in Section 3.3 below; (~~and such Excluded Agreements shall not be deemed to constitute a part~~ ii) As owner of the ~~Collateral) for so long as~~Licensed Information, Seller is free to use and permit any of the Seller-Related Parties to use any of the ~~extent that~~Licensed Information in connection with the conduct of any businesses, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Excluded Agreements (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided, however, that a security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result in a breach, default or termination of such Excluded Agreement; or (~~b) equity interests in any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c~~A) any ~~“intent~~ such use with respect to ~~use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications~~ DHRC shall be ~~automatically~~ subject to the ~~Lien granted herein and deemed included~~ restrictions set forth in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section ~~10.01(vi~~2.1(8) of the ~~Credit~~ Asset Purchase Agreement, and (B) all such businesses shall be bound by all of the terms and provisions of this Agreement; (iii) Seller and any of the Seller-Related Parties shall be free during the Confidentiality Period to disclose or otherwise furnish to any other Person (a "Third Party"), and to license any Third Party to use, any of the Licensed Information, provided that such Third Party (1) is not engaged in or, to Seller's best knowledge, is not planning to engage in, a Competitive Business, and (2) ~~any Equipment~~expressly agrees, ~~machinery or other fixed asset that would otherwise~~ in writing, to be ~~included in~~ bound by all the ~~Collateral (~~terms and ~~such Equipment~~provisions of this Section 3 and Sections 4, ~~machinery or other fixed asset shall not be deemed to constitute a part~~ 5, 7, 10 and 11 of ~~the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit~~ this Agreement; (3iv) During the Confidentiality Period, Seller or any ~~property that would~~ of the Seller-Related Parties may sell or otherwise ~~be included in~~ transfer ownership of any of the ~~Collateral (and such property shall not be deemed~~ Licensed Information to ~~constitute a~~ any Third Party, whether by operation of law or otherwise, as part of ~~the Collateral) if such property has been sold~~ or ~~otherwise transferred~~ in connection with a ~~sale-leaseback transaction permitted under Section 10.02(xiii~~sale or other transfer to such Third Party (or any Subsidiary thereof) of (1) a majority or more of the ~~Credit Agreement~~outstanding shares of Seller or of any Seller Related Party (whether by outright sale of shares or a merger or Reorganization (as defined in the California Corporations Code), (2) substantially all of the assets of Seller, or ~~is subject to~~ of any ~~Liens permitted under Section 10.01(xviii)~~ Seller Related Party or of any businesses conducted by any of them, provided that such Third Party agrees, in writing, that it shall be bound by all of the ~~Credit~~ terms and provisions of this Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such Lien.

Appears in 1 contract

Sources: Non Competition Agreement (Greg Manning Auctions Inc)

Certain Exceptions. ~~Notwithstanding Section 1.1, no~~ No security interest is or will be granted pursuant ~~hereto~~ to this Agreement or any other Security Document in any right, title or interest of any ~~Grantor~~ Granting Party under or in in, and “Collateral” and “Pledged Collateral” shall not include the following (~~each of (a) through (h)~~ collectively, the “Excluded ~~Collateral~~Assets”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, ~~licenses~~ Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than ~~Holdings or~~ Holding, a Subsidiary of ~~Holdings~~ Holding or the Parent Borrower or an Affiliate ~~thereof~~ of any of the foregoing (collectively, “~~Excluded~~ Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such ~~Excluded~~ Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such ~~Excluded~~ Restrictive Agreements (in each case, except to the extent ~~any such breach~~that, ~~default or termination would be rendered ineffective under~~ pursuant to the ~~UCC or~~ Code (including applicable anti-assignment provisions) and other applicable law~~); provided~~, ~~however, that a~~ the granting of security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, interests therein can be made without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result resulting in a breach, default or termination of such ~~Excluded Agreement; or~~Restrictive Agreements); (b) ~~equity interests in~~ any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture Equipment or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in subsection 8.2(h) of the Credit Agreement (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or 8.2(o) of the Credit Agreement (with respect to such Liens described in such subsection 8.2(h) of the Credit Agreement (but in each case only for so long as such Liens are in place); or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement, but excluding any Hedging Obligations secured under (A) any Security Document or (B) any Term Loan Priority Collateral Document (as defined in the ABL/Term Loan Intercreditor Agreement)) permitted by subsection 8.2 of the Credit Agreement (but only for so long as such Liens are in place), and such other property consists solely of (i) cash, Cash Equivalents or Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, together with proceeds, dividends or distributions thereof, or to such Hedging Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any Hedging Obligations (as defined in the Credit Agreement) or (2) any other agreements, instruments or documents related to any such Hedging Obligations (as defined in the Credit Agreement) or to any of the assets referred to in any of subclauses (i) through (iii) of this subclause (y); (c) any property (and/or related rights and/or assets) (A) that would otherwise be included in the Security Collateral (and such property (and/or related rights and/or assets) shall not be deemed to constitute a part of the Security Collateral) if such property (x) has been sold or otherwise transferred in connection with (i) a ~~sale-leaseback transaction permitted under Section 10.02(xiii) of~~ Special Purpose Financing in accordance with the Credit Agreement, ~~or is subject~~ (ii) a Sale and Leaseback Transaction the proceeds of which are applied pursuant to ~~any Liens permitted under Section 10.01(xviii)~~ terms of the First Lien Credit Agreement, the Second Lien Credit Agreement or any Additional Term Credit Facility or (iii) an Exempt Sale and Leaseback Transaction, or (y) constitutes the Proceeds or products of any property that has been so sold or otherwise transferred ~~so long as~~ pursuant to such ~~Proceeds~~ Special Purpose Financing, Sale and Leaseback Transaction or ~~products remain subject to~~ Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the ~~Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (~~sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or ~~asset shall not be deemed to constitute a part of the Collateral~~Exempt Sale and Leaseback Transaction) ~~if such property~~ or ~~assets~~ (B) is subject to ~~a Lien permitted by Section 10.01(xiv~~any Liens securing Indebtedness incurred in compliance with subsection 8.1(b)(ix) of the Credit Agreement; , or Liens permitted under subsection 8.2(m)(vii) or 8.2(p)(xii) of the Credit Agreement; (d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in ~~each case pursuant~~ the proviso to ~~preceding clauses~~ the definition of Pledged Stock; (~~i)(1~~e) ~~through~~ any interest in leased real property (4including Fixtures related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters)~~, for so long as,~~ ; (f) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $10,000,000 individually; (g) any Vehicles and any assets subject to certificate of title; (h) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $10,000,000; (i) assets to the extent ~~that,~~ the granting or ~~existence~~ perfecting of ~~such~~ a security interest ~~pursuant hereto~~ in such assets would result in ~~a breach~~costs or other consequences to Holding or any of its Subsidiaries as reasonably determined in writing by the Parent Borrower and the Administrative Agent, ~~default~~ that are excessive in view of the benefits that would be obtained by the Secured Parties; (j) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, applicable law or ~~termination~~ regulation or the organizational or joint venture documents of any ~~agreement relating to~~ non-wholly owned Subsidiary (including permitted liens, leases and licenses), including contracts over which the ~~respective Lien or obligations secured thereby~~ granting of security interests therein would result in termination thereof (in each case, ~~except~~ after giving effect to the applicable anti-assignment provisions of the Code and other applicable law, other than proceeds and receivables thereof to the extent ~~any such breach, default or termination would be rendered ineffective~~ that their assignment is expressly deemed effective under the ~~UCC~~ Code and/or other applicable law notwithstanding such prohibitions), or to the extent that such security interests would result in material adverse tax consequences to Holding, any Borrower or any one or more of such Borrower’s Subsidiaries as reasonably determined in writing by the Parent Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require any Borrower or any of such Borrower’s Subsidiaries to enter into any security agreements or pledge agreements governed by foreign law); (k) the Acquisition Agreement and any rights therein or arising thereunder (it being understood that this clause (k) shall not apply to any proceeds of the Acquisition Agreement); (i) any assets specifically requiring perfection through control agreements (including cash, cash equivalents, deposit accounts or other ~~applicable law); provided that immediately upon repayment~~ bank or securities accounts but excluding the Collateral Proceeds Account, DDAs, Concentration Accounts, the Core Concentration Account and Blocked Accounts (in each case only to the extent a control agreement is required pursuant to Subsection 4.16 of the ~~Indebtedness and/or other monetary obligation secured~~ Credit Agreement)) to the extent the security interest in such asset is not automatically perfected by ~~a Lien referenced~~ filings under the Uniform Commercial Code of any applicable jurisdiction or, in ~~clauses (i)(1) through (4)~~the case of Pledged Stock, by being held by the Collateral Agent, the ~~relevant Grantor shall~~ Administrative Agent, or any other Collateral Representative and (ii) Excluded Accounts; (m) Foreign Intellectual Property; (n) any aircraft, airframes, aircraft engines, helicopters, vessels or rolling stock or any Equipment or other assets constituting a part thereof; (o) any Capital Stock and other securities of a Subsidiary of the Parent Borrower to the extent that the pledge of or grant of any other Lien on such Capital Stock and other securities for the benefit of any holders of securities results in the Parent Borrower or any of its Restricted Subsidiaries being required to file separate financial statements for such Subsidiary with the Securities and Exchange Commission (or any other governmental authority) pursuant to either Rule 3-10 or 3-16 of Regulation S-X under the Securities Act, or any other law, rule or regulation as in effect from time to time, but only to the extent necessary to not be ~~deemed~~ subject to ~~have granted~~ such requirement; (p) any assets or property of Holding, other than the Pledged Stock of the Parent Borrower; and (q) any Goods in which a security interest is not perfected by filing a financing statement in ~~all~~ the applicable Grantor’s jurisdiction of ~~its rights, title and interests under or in such asset, Equipment or other property that is the subject of such Lien~~organization.

Appears in 1 contract

Sources: Abl Guarantee and Collateral Agreement (Us LBM Holdings, Inc.)

Certain Exceptions. Notwithstanding ~~Section 1.1, no security interest is~~ the foregoing or ~~will~~ anything to the contrary that may be ~~granted pursuant hereto~~ contained elsewhere in ~~any right, title or interest of any Grantor under or in (each of (a) through (h) collectively, the “Excluded Collateral”):~~this Agreement: (a) any Instruments, Contracts, Chattel Paper, General Intangibles, licenses or other contracts or agreements with or issued by Persons other than Holdings or a Subsidiary of Holdings or an Affiliate thereof (collectively, “Excluded Agreements”) that would otherwise be included The use restrictions and confidentiality obligations set forth in ~~the Collateral (and such Excluded Agreements~~ Section 3.1 above shall not ~~be deemed~~ apply to ~~constitute a part~~ any of the ~~Collateral) for so long as~~Licensed Information which is or becomes lawfully available from any third parties without breaching any confidentiality agreement, ~~and to the extent that, the granting~~ including a breach of ~~such a security interest pursuant hereto would result in a breach, default~~ this Agreement by Seller or ~~termination of such Excluded Agreements (in each case, except to the extent~~ any ~~such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided, however, that a security interest in an Excluded Agreement in favor~~ of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result in a breach, default or termination of such Excluded Agreement; orSeller-Related Parties; (b) equity interests in any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights Without breaching or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; andviolating this Agreement: (i) Seller or any of the ~~following:~~Seller-Related Parties may disclose or furnish any of the Licensed Information pursuant to subpoena or other legal process, or upon making a good faith determination (after consultation with its outside legal counsel) that such disclosure is required to be made under applicable law , but in any such event it shall be obligated to comply with the procedure set forth in Section 3.3 below; (1ii) As owner of the Licensed Information, Seller is free to use and permit any of the Seller-Related Parties to use any of the Licensed Information in connection with the conduct of any businesses, provided , however , that (A) any ~~asset that would otherwise~~ such use with respect to DHRC shall be ~~included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is~~ subject to ~~a Lien permitted by~~ the restrictions set forth in Section ~~10.01(vi~~2.1(8) of the ~~Credit~~ Asset Purchase Agreement, and (B) all such businesses shall be bound by all of the terms and provisions of this Agreement; (iii) Seller and any of the Seller-Related Parties shall be free during the Confidentiality Period to disclose or otherwise furnish to any other Person (a "Third Party"), and to license any Third Party to use, any of the Licensed Information, provided that such Third Party (1) is not engaged in or, to Seller’s best knowledge, is not planning to engage in, a Competitive Business, and (2) ~~any Equipment~~expressly agrees, ~~machinery or other fixed asset that would otherwise~~ in writing, to be ~~included in~~ bound by all the ~~Collateral (~~terms and ~~such Equipment~~provisions of this Section 3 and Sections 4, ~~machinery or other fixed asset shall not be deemed to constitute a part~~ 5, 7, 10 and 11 of ~~the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit~~ this Agreement; (3iv) During the Confidentiality Period, Seller or any ~~property that would~~ of the Seller-Related Parties may sell or otherwise ~~be included in~~ transfer ownership of any of the ~~Collateral (and such property shall not be deemed~~ Licensed Information to ~~constitute a~~ any Third Party, whether by operation of law or otherwise, as part of ~~the Collateral) if such property has been sold~~ or ~~otherwise transferred~~ in connection with a ~~sale-leaseback transaction permitted under Section 10.02(xiii~~sale or other transfer to such Third Party (or any Subsidiary thereof) of (1) a majority or more of the ~~Credit Agreement~~outstanding shares of Seller or of any Seller Related Party (whether by outright sale of shares or a merger or Reorganization (as defined in the California Corporations Code), (2) substantially all of the assets of Seller, or ~~is subject to~~ of any ~~Liens permitted under Section 10.01(xviii)~~ Seller Related Party or of any businesses conducted by any of them, provided that such Third Party agrees, in writing, that it shall be bound by all of the ~~Credit~~ terms and provisions of this Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such Lien.

Appears in 1 contract

Sources: Non Competition Agreement (Collectors Universe Inc)

Certain Exceptions. Notwithstanding Section 1.1, no security interest is or will be granted pursuant hereto in any right, title or interest of any Grantor in, to or under ~~or in~~ (each of clauses (a) through (hp) collectively, the “Excluded Collateral”): (a) any ~~Instruments~~fee-owned real property and any real property leasehold interests; (b) interest in any contracts (including Contracts and Contract Rights), ~~Contracts~~permits, licenses, leases, Accounts, General Intangibles (other than any Equity Interests), Payment Intangibles, Chattel Paper, ~~General Intangibles~~Letter-of-Credit Rights, licenses or other contracts or agreements with or issued by Persons other than Holdings or a Subsidiary of Holdings or an Affiliate thereof (collectively, “Excluded Agreements”) that would otherwise be included in the Collateral (Promissory Notes and such Excluded Agreements shall not be deemed to constitute a part of the Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Excluded Agreements (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided, however, that a security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that Health-Care-Insurance Receivables if the grant of a security interest or Lien therein ~~would result in~~ is prohibited as a ~~breach~~matter of law, ~~default~~ rule or ~~termination~~ regulation or under the terms of such ~~Excluded Agreement; or~~contracts (including Contracts and Contract Rights), permits, licenses, leases, Accounts, General Intangibles, Payment Intangibles, Chattel Paper, Letter-of-Credit Rights, Promissory Notes and Health-Care-Insurance Receivables, in each case after giving effect to any applicable Uniform Commercial Code and other applicable law; (bc) ~~equity interests in~~ the Voting Equity Interests of (i) any ~~first-tier foreign~~ Foreign Subsidiary that is a CFC in excess of 65% of the ~~total~~ outstanding Voting Equity Interests ~~of such first-tier foreign Subsidiary;~~ thereof and (cii) any ~~“intent to use” Trademark applications for which a statement~~ FSHCO in excess of ~~use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to~~ 65% of the ~~Lien granted herein and deemed included in the Collateral)~~outstanding Voting Equity Interests thereof; (d) ~~any rights or property~~ assets subject to Capitalized Lease Obligations, purchase money financing and cash to secure letter of credit reimbursement obligations to the extent ~~that any valid~~ such Capitalized Lease Obligations, purchase money financing or letters of credit are permitted under the Credit Agreement and ~~enforceable law or regulation applicable to such rights or property prohibits~~ the ~~creation~~ terms thereof prohibit a grant of a security interest therein; (e) assets sold to a person who is not a Credit Party in compliance with the Credit Agreement; (f) assets owned by a Subsidiary after the release of the guaranty of the Obligations of such Subsidiary pursuant to the Credit Agreement; (g) Vehicles (to the extent a security interest therein cannot be perfected by a UCC filing); (h) any application for registration of a trademark filed with the PTO on an intent-to-use basis until such time (if any) as a statement of use or amendment to allege use is accepted by the PTO, at which time such trademark shall automatically become part of the Collateral and subject to the security interest of this Agreement; (i) Equity Interests in any Person (i) other than the Borrowers and Wholly-Owned Subsidiaries to the extent a pledge thereof is not permitted by the terms of such Person’s charter documents or joint venture or shareholders agreements and other organizational documents and (ii) to the extent a pledge thereof is not permitted by any law, rule or regulation after giving effect to the applicable anti-assignment provisions of the UCC and other applicable law; (j) any Letter-of-Credit Right (to the extent a security interest in such Letter-of-Credit Right cannot be perfected by a UCC filing) and any Commercial Tort Claim, in each case, with a value (as determined in good faith by Lead Borrower) of less than $11,250,000; (k) those assets as to which the Collateral Agent ~~shall determine~~ and Lead Borrower reasonably and mutually agree in ~~its sole discretion~~ writing that the cost of obtaining such a security interest or perfection thereof are excessive in relation to the ~~value~~ benefit to the Secured Creditors of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section 10.02(xiii) of the Credit Agreement, or is subject to any Liens permitted under Section 10.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such Lien.

Appears in 1 contract

Sources: Revolving Credit Agreement (VERRA MOBILITY Corp)

Appears in 1 contract

Sources: Revolving Guarantee and Collateral Agreement (Great North Imports, LLC)

Certain Exceptions. ~~Notwithstanding Section 1.1, no~~ No security interest is or will be granted pursuant hereto in any right, title or interest of any ~~Grantor~~ Granting Party under or in (~~each of (a) through (h)~~ collectively, the “Excluded ~~Collateral~~Assets”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, ~~licenses~~ Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than ~~Holdings or~~ the Parent Borrower, a Restricted Subsidiary ~~of Holdings~~ or an Affiliate thereof (collectively, “~~Excluded~~ Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such ~~Excluded~~ Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such ~~Excluded~~ Restrictive Agreements (in each case, except to the extent ~~any such breach~~that, ~~default or termination would be rendered ineffective under~~ pursuant to the ~~UCC~~ Code or other applicable law~~); provided~~, ~~however, that a~~ the granting of security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, interests therein can be made without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result resulting in a breach, default or termination of such ~~Excluded Agreement; or~~Restrictive Agreements); (b) ~~equity interests in~~ any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture Equipment or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset property that would otherwise be included in the Security Collateral (and such ~~asset~~ Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such ~~asset~~ Equipment or other property (x) is subject to a Lien ~~permitted by Section 10.01(vi~~described in subsection 7.2(h) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) in respect of Purchase Money Obligations or Capitalized Lease Obligations, or a Lien described in subsection 7.2(o) (with respect to such a Lien described in subsection 7.2(h)) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement), and consists of Equipment or other property financed or refinanced thereby (including through any financing or refinancing of the acquisition, leasing, construction or improvement of any such assets) and/or any improvements, accessions, proceeds, dividends or distributions in respect of any such assets, and/or any other assets relating to any such assets (including to any such acquisition, leasing, construction or improvement thereof) or any such improvements, accessions, proceeds, dividends or distributions, or (y) is subject to a Lien described in subsection 7.2(h) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) in respect of Hedging Obligations, or a Lien described in subsection 7.2(o) (with respect to such a Lien described in subsection 7.2(h)) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement), and consists of (i) cash, Cash Equivalents, Investment Grade Securities and Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions or to any Hedging Obligations, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (A) any Interest Rate Agreements, Currency Agreements or Commodities Agreements or (B) any other agreements, instruments or documents related to any Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this clause (y); (2c) any ~~Equipment, machinery or other fixed asset~~ property that (A) would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Security Collateral (and such property shall not be deemed to constitute a part of the Security Collateral) if such property (x) has been sold or otherwise transferred in connection with (i) a ~~sale-leaseback transaction permitted under Section 10.02(xiii~~Special Purpose Financing, (ii) a Sale and Leaseback Transaction the proceeds of which are applied pursuant to subsection 3.4 of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) if and to the extent required thereby or (iii) an Exempt Sale and Leaseback Transaction, ~~or is subject to any Liens permitted under Section 10.01(xviii~~(y) ~~of the Credit Agreement, or~~ constitutes the Proceeds or products of any property that has been so sold or otherwise transferred pursuant to such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or Exempt Sale and Leaseback Transaction) or (z) is subject to any Liens securing Indebtedness incurred in compliance with subsection 7.1(b)(ix) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement), or Liens permitted under subsection 7.2(k)(4) or 7.2(p)(12) of the Cash Flow Credit Agreement (or, should the subsection numbering or organization of the Cash Flow Credit Agreement be changed following an amendment thereto or a modification or replacement thereof, the corresponding subsection of the Cash Flow Credit Agreement) or (B) is subject to any Permitted Lien and consists of property subject to any such sale and leaseback transaction or general intangibles related thereto (but only for so long as such ~~Proceeds~~ Liens are in place); (d) each Granting Party acknowledges that certain of the Pledged Collateral of such Granting Party may now or ~~products remain subject~~ in the future consist of ULC Shares, and that it is the intention of the U.S. ABL Collateral Agent and each Granting Party that neither the U.S. ABL Collateral Agent nor any other Secured Party should under any circumstances prior to realization be held to be a “member” or “shareholder”, as applicable, of a ULC for the purposes of any ULC Laws. Therefore, notwithstanding any provisions to the ~~Liens referenced above~~ contrary contained in this ~~clause~~ Agreement, the ABL Credit Agreement or any other Loan Document, where a Granting Party is the registered and beneficial owner of ULC Shares which are Pledged Collateral of such Granting Party, such Granting Party will remain the sole registered and beneficial owner of such ULC Shares until such time as such ULC Shares are effectively transferred into the name of the U.S. ABL Collateral Agent, any other Secured Party, or any other Person on the books and records of the applicable ULC. Accordingly, each Granting Party shall be entitled to receive and retain for its own account any dividend or other distribution, if any, in respect of such ULC Shares (~~b)(iii~~except for any dividend or distribution comprised of share certificates representing Pledged Collateral, which shall be delivered to the U.S. ABL Collateral Agent to hold as Pledged Collateral hereunder) and shall have the right to vote such ULC Shares and to control the direction, management and policies of the applicable ULC to the same extent as such Granting Party would if such ULC Shares were not pledged to the U.S. ABL Collateral Agent pursuant hereto. Nothing in this Agreement, the ABL Credit Agreement or any other Loan Document is intended to, and nothing in this Agreement, the ABL Credit Agreement or any other Loan Document shall, constitute the U.S. ABL Collateral Agent, any other Secured Party, or any other Person other than the applicable Granting Party, a member or shareholder of a ULC for the purposes of any ULC Laws (whether listed or unlisted, registered or beneficial), until such time as notice is given to such Granting Party and further steps are taken pursuant hereto or thereto so as to register the U.S. ABL Collateral Agent, any other Secured Party, or such other Person, as specified in such notice, as the holder of the ULC Shares. To the extent any provision hereof would have the effect of constituting the U.S. ABL Collateral Agent or any other Secured Party as a member or a shareholder, as applicable, of any ULC prior to such time, such provision shall be severed herefrom and shall be ineffective with respect to ULC Shares which are Pledged Collateral of any Granting Party, without otherwise invalidating or rendering unenforceable this Agreement or invalidating or rendering unenforceable such provision insofar as it relates to Pledged Collateral of any Granting Party which is not ULC Shares. Except upon the exercise of rights of the U.S. ABL Collateral Agent to sell, transfer or otherwise dispose of ULC Shares in accordance with this Agreement, each Granting Party shall not cause or permit, or enable an Issuer that is a ULC to cause or permit, the U.S. ABL Collateral Agent or any other Secured Party to: (a) be registered as a shareholder or member of such Issuer; (b) have any notation entered in their favor in the share register of such Issuer; (c) be held out as shareholders or members of such Issuer; (d) receive, directly or indirectly, any dividends, property or other distributions from such Issuer by reason of the U.S. ABL Collateral Agent holding the Security Interests over the ULC Shares; or (e) act as a shareholder of such Issuer, or exercise any rights of a shareholder including the right to attend a meeting of shareholders of such Issuer or to vote its ULC Shares; (e) Capital Stock which is specifically excluded from the definition of Pledged Stock by virtue of the proviso contained in the parenthetical to such definition; (f) those assets over which the granting of security interests in such assets (i) would be prohibited by a contract permitted under the ABL Credit Agreement, by applicable law or regulation or the organizational or joint venture documents of any non-wholly owned Subsidiary (after giving effect to Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor provision or provisions) or any other applicable law (including the Bankruptcy Code) or principles of equity), or (ii) to the extent that such security interests would result in material adverse tax consequences as reasonably determined by the Borrower; (i) any interest in leased Real Property (ii) any Real Property which is a Flood Property, and (iii) and any Real Property acquired after the Third Amendment Effective Date which is not a Flood Property, but only for the period commencing on the date of such acquisition and ending on the first date thereafter on which each of the U.S. ABL Collateral Agent, the Administrative Agent, and the U.S. Facility Lenders shall have completed their respective due diligence with respect to such Real Property as contemplated by Section 7.9(e)(iv) of the Credit Agreement and, if applicable, the U.S. ABL Collateral Agent shall have been grated a Lien with respect to such Real Property to the extent required by, and in accordance with, the terms of the Credit Agreement; (h) any property that would not otherwise be ABL Priority Collateral and is an Excluded Asset (as such term is defined in the Cash Flow Guarantee and Collateral Agreement); (i) Foreign Intellectual Property; and (4j) any ~~property or asset that would otherwise be included in the Collateral (~~Vehicles and ~~such property or asset shall not be deemed to constitute a part of the Collateral) if such property or~~ any other assets is subject to ~~a Lien permitted by Section 10.01(xiv)~~ certificate of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such Lientitle.

Appears in 1 contract

Sources: u.s. Guarantee and Collateral Agreement (Hd Supply, Inc.)

Certain Exceptions. Notwithstanding Section 1.1, no security interest is or will be granted pursuant hereto in any right, title or interest of any Grantor in, to or under ~~or in~~ (each of clauses (a) through (hr) collectively, the “Excluded Collateral”): (a) any ~~Instruments~~fee-owned real property and any real property leasehold interests (for the avoidance of doubt, ~~Contracts~~this clause (a) shall not apply to fixtures); (b) interest in any contracts (including Contracts and Contract Rights), Permits, (other than FCC Licenses, but subject to the proviso in Section 1.1(a)(xix)), leases, Accounts, General Intangibles (other than any Equity Interests), Payment Intangibles, Chattel Paper, General Intangibles, licenses or other contracts or agreements with or issued by Persons other than Holdings or a Subsidiary of Holdings or an Affiliate thereof (collectively, “Excluded Agreements”) that would otherwise be included in Letter-of-Credit Rights and Promissory Notes if the Collateral (and such Excluded Agreements shall not be deemed to constitute a part of the Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Excluded Agreements (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided, however, that a security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest ~~in such Excluded Agreement no longer results in~~ or Lien therein is prohibited as a ~~breach~~matter of law, ~~default~~ rule or ~~termination thereof~~ regulation or ~~thereunder and, to~~ under the ~~extent severable, shall attach immediately to any portion~~ terms of such ~~Excluded Agreement that does not result in a respective breach~~contracts (including Contracts and Contract Rights), ~~default or termination thereof or thereunder~~Permits, ~~including~~leases, ~~without limitation~~Accounts, ~~any proceeds of such Excluded Agreement; provided further~~General Intangibles, ~~that~~Payment Intangibles, Chattel Paper, Letter-of-Credit Rights and Promissory Notes, in ~~furtherance~~ each case after giving effect to Article 9 of any applicable Uniform Commercial Code and other applicable law; (c) the Voting Equity Interests of (i) any Foreign Subsidiary that is a CFC in excess of 65% of the ~~foregoing, each Grantor agrees that it shall not amend~~ outstanding Voting Equity Interests thereof and (ii) any ~~material Excluded Agreement~~ FSHCO in ~~effect as~~ excess of 65% of the ~~date hereof so that~~ outstanding Voting Equity Interests thereof; (d) assets subject to Capitalized Lease Obligations, purchase money financings or similar arrangements in each case permitted under the Credit Agreement and the terms thereof prohibit a grant of a security interest therein or a grant of a security interest therein would ~~result~~ violate such arrangement or create a right of termination in favor of any other party thereto (other than a ~~breach, default~~ Credit Party or ~~termination~~ its Wholly-Owned Subsidiaries) and cash to secure letter of such Excluded Agreement; or (b) equity interests in any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property credit reimbursement obligations to the extent ~~that any valid~~ permitted under the Credit Agreement and ~~enforceable law or regulation applicable~~ to ~~such rights or property prohibits~~ the ~~creation~~ extent the terms thereof prohibit a grant of a security interest therein; (e) assets sold to a person who is not a Credit Party in compliance with the Credit Agreement; (f) assets owned by a Subsidiary after the release of the guaranty of the Obligations of such Subsidiary pursuant to the Credit Agreement; (g) Vehicles and other assets or goods subject to certificates of title (to the extent a security interest therein cannot be perfected by a UCC filing); (h) any application for registration of a trademark filed with the PTO on an intent-to-use basis until such time (if any) as a statement of use or amendment to allege use is accepted by the PTO, at which time such trademark shall automatically become part of the Collateral and subject to the security interest of this Agreement; (i) Equity Interests in any Person (i) other than the Borrower and Wholly-Owned Restricted Subsidiaries to the extent a pledge thereof is not permitted by the terms of such Person’s charter documents or joint venture or shareholders agreements and other organizational documents after giving effect to the applicable anti-assignment provisions of the UCC and other applicable law, (ii) to the extent a pledge thereof is not permitted by any law, rule or regulation after giving effect to the applicable anti-assignment provisions of the UCC and other applicable law; (j) any Letter-of-Credit Right (to the extent a security interest in such Letter-of-Credit Right cannot be perfected by a UCC filing) with a value (as determined in good faith by the Borrower) of less than $13,500,000 and any Commercial Tort Claim with a value (as determined in good faith by the Borrower) of less than $10,000,000; (k) those assets as to which the Collateral Agent ~~shall determine~~ and the Borrower reasonably and mutually agree in ~~its sole discretion~~ writing that the cost of obtaining such a security interest or perfection thereof (including any adverse tax consequences) are excessive in relation to the ~~value~~ benefit to the Secured Creditors of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section 10.02(xiii) of the Credit Agreement, or is subject to any Liens permitted under Section 10.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4), for so long as, and to the extent that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such Lien.

Appears in 1 contract

Sources: Security Agreement (Iridium Communications Inc.)

Certain Exceptions. ~~Notwithstanding Section 1.1, no~~ No security interest is or will be granted pursuant ~~hereto~~ to this Agreement or any other Security Document in any right, title or interest of any ~~Grantor~~ Granting Party under or in in, and “Collateral” and “Pledged Collateral” shall not include the following (~~each of (a) through (h)~~ collectively, the “Excluded ~~Collateral~~Assets”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, ~~licenses~~ Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than ~~Holdings or~~ Holding, a Subsidiary of ~~Holdings~~ Holding or the Borrower or an Affiliate ~~thereof~~ of any of the foregoing (collectively, “~~Excluded~~ Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such ~~Excluded~~ Restrictive Agreements shall not be deemed to constitute a part of the Security Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such ~~Excluded~~ Restrictive Agreements (in each case, except to the extent ~~any such breach~~that, ~~default or termination would be rendered ineffective under~~ pursuant to the ~~UCC or~~ Code and other applicable law~~); provided~~, ~~however, that a~~ the granting of security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, interests therein can be made without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result resulting in a breach, default or termination of such ~~Excluded Agreement; or~~Restrictive Agreements); (b) ~~equity interests in~~ any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture Equipment or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in subsection 7.2(h) of the Credit Agreement (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or 7.2(o) of the Credit Agreement (with respect to such Liens described in such subsection 7.2(h) of the Credit Agreement (or any corresponding provision of the Second Lien Credit Agreement, ABL Credit Agreement or any Additional Credit Facility, provided that such provision in any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) (but in each case only for so long as such Liens are in place); or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement, but excluding any Hedging Obligations secured under (A) any Security Document, (B) any ABL Collateral Document (as defined in the ABL/Term Loan Intercreditor Agreement) or (C) any Additional Collateral Document (as defined in the Base Intercreditor Agreement)) permitted by subsection 7.2 of the Credit Agreement (or any corresponding provision of the Second Lien Credit Agreement, the ABL Credit Agreement or any Additional Credit Facility, provided that such provision in any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) (but only for so long as such Liens are in place), and such Equipment or other property consists solely of (i) cash, Cash Equivalents or Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) any assets relating to such assets, proceeds, dividends or distributions, or to such Hedging Obligations (as defined in the Credit Agreement), and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) any such Hedging Obligations or (2) any other agreements, instruments or documents related to any such Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this subclause (y); (c) any property (and/or related rights and/or assets) (A) that would otherwise be included in the Security Collateral (and such property (and/or related rights and/or assets) shall not be deemed to constitute a part of the Security Collateral) if such property (x) has been sold or otherwise transferred in connection with (i) a ~~sale-leaseback transaction permitted under Section 10.02(xiii~~Special Purpose Financing, (ii) a Sale and Leaseback Transaction the proceeds of which are applied pursuant to subsection 3.4 of the Credit ~~Agreement,~~ Agreement (or ~~is subject to~~ any ~~Liens permitted under Section 10.01(xviii)~~ corresponding provision of the Second Lien Credit Agreement, the ABL Credit Agreement or any Additional Credit Facility; provided that such provision in any Additional Credit Facility is not materially less favorable to the Lenders than the corresponding provision in the Credit Agreement (as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent)) if and to the extent required thereby or (iii) an Exempt Sale and Leaseback Transaction, or (y) constitutes the Proceeds or products of any property that has been so sold or otherwise transferred ~~so long as~~ pursuant to such ~~Proceeds~~ Special Purpose Financing, Sale and Leaseback Transaction or ~~products remain subject to~~ Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the ~~Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (~~sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or ~~asset shall not be deemed to constitute a part of the Collateral~~Exempt Sale and Leaseback Transaction) ~~if such property~~ or ~~assets~~ (B) is subject to ~~a Lien permitted by Section 10.01(xiv~~any Liens securing Indebtedness incurred in compliance with subsection 7.1(b)(ix) of the Credit Agreement; , or Liens permitted under subsection 7.2(m)(vii) or 7.2(p)(xii) of the Credit Agreement (or in each case ~~pursuant~~ any corresponding provision of the Second Lien Credit Agreement, the ABL Credit Agreement or any Additional Credit Facility; provided that such provision in any Additional Credit Facility is not materially less favorable to ~~preceding clauses~~ the Lenders than the corresponding provision in the Credit Agreement (~~i)(1~~as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent); (d) ~~through~~ Capital Stock (4including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in the proviso to the definition of Pledged Stock; (e) any interest in leased real property (including Fixtures related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters)~~, for so long as,~~ ; (f) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $10,000,000 individually; (g) any Vehicles and any assets subject to certificate of title; (h) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $10,000,000; (i) assets to the extent the granting or perfecting of a security interest in such assets would result in costs or other consequences to Holding or any of its Subsidiaries as reasonably determined in writing by the Borrower and the Administrative Agent and to the extent ~~that~~such assets would otherwise constitute Term Priority Collateral, the Collateral Agent, that are excessive in view of the benefits that would be obtained by the Secured Parties; (j) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, applicable law or ~~existence~~ regulation or the organizational or joint venture documents of ~~such a~~ any non-wholly owned Subsidiary (including permitted liens, leases and licenses), including contracts over which the granting of security ~~interest pursuant hereto~~ interests therein would result in ~~a breach, default or~~ termination ~~of any agreement relating to the respective Lien or obligations secured thereby~~ thereof (in each case, ~~except~~ after giving effect to the applicable anti-assignment provisions of the Code and other applicable law, other than proceeds and receivables thereof to the extent ~~any such breach, default or termination would be rendered ineffective~~ that their assignment is expressly deemed effective under the ~~UCC or~~ Code and/or other applicable law notwithstanding such prohibitions), or to the extent that such security interests would result in material adverse tax consequences to Holding, the Borrower or any one or more of its Subsidiaries as reasonably determined in writing by the Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require the Borrower or any of its Subsidiaries to enter into any security agreements or pledge agreements governed by foreign law)~~; provided~~ ; (k) the Acquisition Agreement and any rights therein or arising thereunder (it being understood that ~~immediately upon repayment~~ this clause (k) shall not apply to any proceeds of the ~~Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4~~Acquisition Agreement), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such Lien.;

Appears in 1 contract

Sources: First Lien Credit Agreement (Us LBM Holdings, Inc.)

Certain Exceptions. ~~Notwithstanding Section 1.1, no~~ No security interest is or will be granted pursuant ~~hereto~~ to this Agreement or any other Security Document in any right, title or interest of any ~~Grantor~~ Granting Party under or in in, and “Collateral” and “Pledged Collateral” shall not include the following (~~each of (a) through (h)~~ collectively, the “Excluded ~~Collateral~~Assets”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, ~~licenses~~ Copyright Licenses, Patent Licenses, Trademark Licenses, Trade Secret Licenses or other contracts or agreements with or issued by Persons other than ~~Holdings or~~ Holdings, a Subsidiary of Holdings or the Parent Borrower or an Affiliate ~~thereof~~ of any of the foregoing (collectively, “~~Excluded~~ Restrictive Agreements”) that would otherwise be included in the Security Collateral (and such ~~Excluded~~ Restrictive Agreements shall not be deemed to constitute a part of the ~~Collateral)~~ Security Collateral for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such ~~Excluded Agreements (~~Restrictive Agreements, in each case, except to the extent ~~any such breach~~that, ~~default or termination would be rendered ineffective under~~ pursuant to the ~~UCC or~~ Code (including applicable anti-assignment provisions) and other applicable law~~); provided~~, ~~however, that a~~ the granting of security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, interests therein can be made without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result resulting in a breach, default or termination of such ~~Excluded Agreement; or~~Restrictive Agreements); (b) ~~equity interests in~~ any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture Equipment or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Security Collateral (and such Equipment or other property shall not be deemed to constitute a part of the Security Collateral) if such Equipment or other property (x) is subject to a Lien described in subsection 8.2(h) of the Credit Agreement (with respect to Purchase Money Obligations or Capitalized Lease Obligations) or 8.2(o) of the Credit Agreement (with respect to such Liens described in such subsection 8.2(h) of the Credit Agreement) (but in each case only for so long as such Liens are in place); or (y) is subject to any Lien in respect of Hedging Obligations (as defined in the Credit Agreement, but excluding any Hedging Obligations secured under (A) any Security Document or (B) any Term Loan Priority Collateral Document) permitted by subsection 8.2(h) of the Credit Agreement (but only for so long as such Liens are in place), and such property consists solely of (i) cash, Cash Equivalents or Temporary Cash Investments, together with proceeds, dividends and distributions in respect thereof, (ii) assets relating to such proceeds, dividends or distributions, and/or (iii) any other assets consisting of, relating to or arising under or in connection with (1) such Hedging Obligations or (2) any other agreements, instruments or documents related to any such Hedging Obligations or to any of the assets referred to in any of subclauses (i) through (iii) of this subclause (y); (c) any property (and/or related rights and/or assets) that (A) would otherwise be included in the Security Collateral (and such property (and/or related rights and/or assets) shall not be deemed to constitute a part of the Security Collateral) if such property (x) has been sold or otherwise transferred in connection with (i) a ~~sale-leaseback transaction permitted under Section 10.02(xiii) of~~ Special Purpose Financing in accordance with the Credit Agreement, ~~or is subject~~ (ii) a Sale and Leaseback Transaction the proceeds of which are applied pursuant to terms of any ~~Liens permitted under Section 10.01(xviii) of the~~ Term Credit Agreement, or (iii) an Exempt Sale and Leaseback Transaction, or (y) constitutes the Proceeds or products of any property that has been so sold or otherwise transferred ~~so long as~~ pursuant to such ~~Proceeds~~ Special Purpose Financing, Sale and Leaseback Transaction or ~~products remain subject to~~ Exempt Sale and Leaseback Transaction (other than any payments received by such Granting Party in payment for the ~~Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (~~sale and transfer of such property in such Special Purpose Financing, Sale and Leaseback Transaction or ~~asset shall not be deemed to constitute a part of the Collateral~~Exempt Sale and Leaseback Transaction) ~~if such property~~ or ~~assets~~ (B) is subject to ~~a Lien permitted by Section 10.01(xiv~~any Liens securing Indebtedness incurred in compliance with subsection 8.1(b)(ix) of the Credit Agreement; , or Liens permitted under subsection 8.2(m)(v) or 8.2(p)(xii) of the Credit Agreement; (d) Capital Stock (including for these purposes any investment deemed to be Capital Stock for United States tax purposes) which is described in ~~each case pursuant~~ the proviso to ~~preceding clauses~~ the definition of Pledged Stock; (~~i)(1~~e) ~~through~~ any interest in leased real property (4including Fixtures related thereto) (and there shall be no requirement to deliver landlord lien waivers, estoppels or collateral access letters)~~, for so long as,~~ ; (f) any fee interest in owned real property (including Fixtures related thereto) if the fair market value of such fee interest is less than $10,000,000 individually; (g) any Vehicles and any assets subject to certificate of title; (h) Letter-of-Credit Rights and Commercial Tort Claims individually with a value of less than $5,000,000; (i) assets to the extent ~~that,~~ the granting or ~~existence~~ perfecting of ~~such~~ a security interest ~~pursuant hereto~~ in such assets would result in ~~a breach~~costs or other adverse consequences to Holdings or any of its Subsidiaries as reasonably determined in writing by the Parent Borrower and the Administrative Agent that are excessive in view of the benefits that would be obtained by the Secured Parties; (j) those assets over which the granting of security interests in such assets would be prohibited by contract permitted under the Credit Agreement, ~~default~~ applicable law or ~~termination~~ regulation or the organizational or joint venture documents of any ~~agreement relating~~ non-wholly owned Subsidiary (including permitted liens, leases and licenses), including contracts over which the granting of security interests therein would give rise to the ~~respective Lien~~ right to terminate by the other party to such contract (other than if such other party is Holdings or ~~obligations secured thereby~~ any Subsidiary of Holdings and no Person other than Holdings or a Subsidiary of Holdings has the right to terminate such contract) (in each case, ~~except~~ after giving effect to the applicable anti-assignment provisions of the Code and other applicable law, other than proceeds and receivables thereof to the extent ~~any such breach, default or termination would be rendered ineffective~~ that their assignment is expressly deemed effective under the ~~UCC~~ Code and/or other applicable law notwithstanding such prohibitions), or to the extent that such security interests would result in material adverse tax consequences to Holdings, any Borrower or any one or more of Holdings’ or such Borrower’s Subsidiaries as reasonably determined in writing by the Parent Borrower and notified in writing to the Collateral Agent (it being understood that the Lenders shall not require any Borrower or any of such Borrower’s Subsidiaries to enter into any security agreements or pledge agreements governed by foreign law; provided, for the avoidance of doubt, that the foregoing shall not limit the obligation of Holdings to enter into the New Zealand Security Deeds or other ~~applicable law~~security documents under the laws of its jurisdiction of organization)~~; provided that immediately upon repayment~~ ; (i) any assets specifically requiring perfection through control agreements (including cash, cash equivalents, deposit accounts or other bank or securities accounts but excluding the Collateral Proceeds Account, DDAs, Concentration Accounts, the Core Concentration Account and Blocked Accounts (in each case only to the extent a control agreement is required pursuant to subsection 4.16 of the ~~Indebtedness and/or~~ Credit Agreement)) to the extent the security interest in such asset is not automatically perfected by filings under the Uniform Commercial Code of any applicable jurisdiction or, in the case of Pledged Stock, by being held by any Agent and (ii) Excluded Accounts; (l) other ~~monetary obligation secured by a Lien referenced~~ than in ~~clauses~~ the case of Holdings (~~i)(1) through (4), the relevant Grantor shall be deemed to have granted~~ so long as a security interest ~~in all~~ therein can be obtained solely pursuant to the New Zealand Security Deeds and the filing of ~~its rights~~one or more financing statements pursuant to the Personal Property Securities ▇▇▇ ▇▇▇▇ of New Zealand), ~~title and interests under~~ Foreign Intellectual Property; (m) any aircraft, airframes, aircraft engines, helicopters, vessels or ~~in such asset,~~ rolling stock or any Equipment or other assets constituting a part thereof; and (n) other than under the New Zealand Security Deeds, any assets or property of Holdings, other than Pledged Collateral of Holdings. Notwithstanding the foregoing or the definition of Pledged Stock, in the event that is the ~~subject~~ holders of any Additional Indebtedness (or an agent or representative on their behalf) shall be granted a Lien in any asset or property described in this subsection 3.3 to secure the obligations in respect of such ~~Lien~~Additional Indebtedness, such asset or property shall cease to be an Excluded Asset and shall constitute Collateral or Pledged Collateral, as appropriate.

Appears in 1 contract

Sources: Abl Guarantee and Collateral Agreement (Uci Holdings LTD)

Certain Exceptions. (i) Notwithstanding ~~Section 1.1~~any other provision set forth in this Agreement to the contrary, ~~no security interest is~~ any Bank may at any time and from time to time pledge as collateral for advances, assign or ~~will~~ endorse for discount, or otherwise transfer all or any portion of its rights under this Agreement and its Note, if any, to any Federal Reserve Bank pursuant to the Federal Reserve Act and related regulations of the Board of Governors of the Federal Reserve System (as such act or regulations are then or thereafter in effect or any successor act or regulations), as well as any applicable operating circular or other requirements of such Board of Governors or Federal Reserve Bank (as then or thereafter in effect). Any Federal Reserve Bank may at any time and from time to time subsequently transfer all or any portion of the rights acquired by such Bank pursuant to this subsection to any Person. No such pledge, assignment, endorsement or other transfer shall or have the effect of releasing the Administrative Agent, any Bank or the Borrower from its respective obligations or conferring any obligations on the pledgee, assignee, endorsee or transferee, as the case may be, under this Agreement or any Note. The requirements of subsections (b), (c) and (d) shall be ~~granted pursuant hereto~~ deemed inapplicable to pledges, assignments, endorsements or other transfers permitted by this subsection. (ii) Notwithstanding anything to the contrary contained herein, any Bank (a "Granting Bank") may grant to a special purpose funding vehicle (an "SPC") of such Granting Bank, identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any ~~right, title or interest~~ part of any ~~Grantor under or in (each of~~ Loan that such Granting Bank would otherwise be obligated to make to the Borrower pursuant to this Agreement, provided that (a) ~~through~~ nothing herein shall constitute a commitment to make any Loan by any SPC and (hb) ~~collectively~~if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan or fund any other obligation required to be funded by it hereunder, the ~~“Excluded Collateral”): (a)~~ Granting Bank shall be obligated to make such Loan or fund such obligation pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall satisfy the obligation of the Granting Bank to make Loans to the same extent, and as if, such Loan were made by the Granting Banks. Each party hereto hereby agrees that no SPC shall be liable for any ~~Instruments, Contracts, Chattel Paper, General Intangibles, licenses or other contracts or agreements with or issued by Persons other than Holdings or~~ payment under this Agreement for which a ~~Subsidiary of Holdings or an Affiliate thereof (collectively, “Excluded Agreements”) that~~ Bank would otherwise be included in the Collateral (and such Excluded Agreements shall not be deemed to constitute a part of the Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Excluded Agreements (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided, however, that a security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result in a breach, default or termination of such Excluded Agreement; or (b) equity interests in any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section 10.02(xiii) of the Credit Agreement, or is subject to any Liens permitted under Section 10.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4)liable, for so long as, and to the ~~extent~~ extent, the related Granting Bank makes such payment. In furtherance of the foregoing, each party hereto hereby agrees that, prior to the ~~granting~~ date that is one year and one day after the payment in full of all outstanding senior indebtedness of any SPC, it will not institute against or ~~existence~~ join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings, under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 11.4 any SPC may (A) with notice to , but without the prior written consent of, the Borrower or the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loan to its Granting Bank or to any financial institutions providing liquidity and/or credit facilities to or for the account of such SPC to fund the Loans made by such SPC or to support the securities (if any) issued by such SPC to fund such Loans and (B) disclose on a ~~security interest pursuant hereto would result in~~ confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of a ~~breach~~surety, ~~default~~ guarantee or ~~termination~~ credit or liquidity enhancement to such SPC. Notwithstanding any other provisions of this Agreement, the Borrower agrees that it will not use the proceeds of any ~~agreement relating~~ Loan made by a Bank which is funded through an SPC to be used to purchase or carry Margin Stock if such Bank (i) notifies the Borrower that its Loan will be funded through an SPC and (ii) requests the Borrower prior to the ~~respective Lien or obligations secured thereby (in each case, except~~ Effective Date not to use the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all proceeds of its ~~rights, title and interests under or in~~ Loan for such ~~asset, Equipment or other property that is the subject of such Lien~~purpose.

Appears in 1 contract

Sources: Credit Agreement (Eastman Kodak Co)

Certain Exceptions. (i) Notwithstanding ~~Section 1.1~~any other provision set forth in this Agreement to the contrary, ~~no security interest is~~ any Bank may at any time and from time to time pledge as collateral for advances, assign or ~~will~~ endorse for discount, or otherwise transfer all or any portion of its rights under this Agreement and its Note, if any, to any Federal Reserve Bank pursuant to the Federal Reserve Act and related regulations of the Board of Governors of the Federal Reserve System (as such act or regulations are then or thereafter in effect or any successor act or regulations), as well as any applicable operating circular or other requirements of such Board of Governors or Federal Reserve Bank (as then or thereafter in effect). Any Federal Reserve Bank may at any time and from time to time subsequently transfer all or any portion of the rights acquired by such Bank pursuant to this subsection to any Person. No such pledge, assignment, endorsement or other transfer shall or have the effect of releasing the Administrative Agent, any Bank or the Borrower from its respective obligations or conferring any obligations on the pledgee, assignee, endorsee or transferee, as the case may be, under this Agreement or any Note. The requirements of subsections (b), (c) and (d) shall be ~~granted pursuant hereto~~ deemed inapplicable to pledges, assignments, endorsements or other transfers permitted by this subsection. (ii) Notwithstanding anything to the contrary contained herein, any Bank (a "Granting Bank") may grant to a special purpose funding vehicle (an "SPC") of such Granting Bank, identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any ~~right, title or interest~~ part of any ~~Grantor under or in (each of~~ Loan that such Granting Bank would otherwise be obligated to make to the Borrower pursuant to this Agreement, provided that (a) ~~through~~ nothing herein shall constitute a commitment to make any Loan by any SPC and (hb) ~~collectively~~if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan or fund any other obligation required to be funded by it hereunder, the ~~“Excluded Collateral”): (a)~~ Granting Bank shall be obligated to make such Loan or fund such obligation pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall satisfy the obligation of the Granting Bank to make Loans to the same extent, and as if, such Loan were made by the Granting Banks. Each party hereto hereby agrees that no SPC shall be liable for any ~~Instruments, Contracts, Chattel Paper, General Intangibles, licenses or other contracts or agreements with or issued by Persons other than Holdings or~~ payment under this Agreement for which a ~~Subsidiary of Holdings or an Affiliate thereof (collectively, “Excluded Agreements”) that~~ Bank would otherwise be included in the Collateral (and such Excluded Agreements shall not be deemed to constitute a part of the Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Excluded Agreements (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided, however, that a security interest in an Excluded Agreement in favor of the Secured Creditors shall attach immediately at such time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result in a breach, default or termination of such Excluded Agreement; or (b) equity interests in any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) any Equity Interests in a joint venture or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section 10.02(xiii) of the Credit Agreement, or is subject to any Liens permitted under Section 10.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4)liable, for so long as, and to the ~~extent~~ extent, the related Granting Bank makes such payment. In furtherance of the foregoing, each party hereto hereby agrees that, prior to the ~~granting~~ date that is one year and one day after the payment in full of all outstanding senior indebtedness of any SPC, it will not institute against or ~~existence~~ join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings, under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 12.4 any SPC may (A) with notice to, but without the prior written consent of, the Borrower or the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loan to its Granting Bank or to any financial institutions providing liquidity and/or credit facilities to or for the account of such SPC to fund the Loans made by such SPC or to support the securities (if any) issued by such SPC to fund such Loans and (B) disclose on a ~~security interest pursuant hereto would result in~~ confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of a ~~breach~~surety, ~~default~~ guarantee or ~~termination~~ credit or liquidity enhancement to such SPC. Notwithstanding any other provisions of this Agreement, the Borrower agrees that it will not use the proceeds of any ~~agreement relating~~ Loan made by a Bank which is funded through an SPC to be used to purchase or carry Margin Stock if such Bank (i) notifies the Borrower that its Loan will be funded through an SPC and (ii) requests the Borrower prior to the ~~respective Lien or obligations secured thereby (in each case, except~~ Effective Date not to use the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all proceeds of its ~~rights, title and interests under or in~~ Loan for such ~~asset, Equipment or other property that is the subject of such Lien~~purpose.

Appears in 1 contract

Sources: Credit Agreement (Eastman Kodak Co)

Certain Exceptions. Notwithstanding ~~Section 1.1, no security interest is~~ the foregoing provisions of this Section: (i) any Restricted Subsidiary may elect to convert from a corporation or ~~will be granted pursuant hereto~~ partnership into a limited liability company and any Restricted Subsidiary (other than any Acquisition Subsidiary at the time obligated in ~~any right, title or interest~~ respect of any ~~Grantor~~ Indebtedness permitted under Section 6.03(h)) may be merged or ~~in (each of (a) through (h) collectively, the “Excluded Collateral”): (a) any Instruments, Contracts, Chattel Paper, General Intangibles, licenses or other contracts or agreements~~ consolidated with or ~~issued by Persons~~ into (x) the Borrower if the Borrower shall be the continuing or surviving corporation or (y) MCC or any other ~~than Holdings or a Subsidiary of Holdings or an Affiliate thereof (collectively~~Restricted Subsidiary, “Excluded Agreements”) that would otherwise be included in the Collateral (and such Excluded Agreements shall not be deemed to constitute a part of the Collateral) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Excluded Agreements (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided, however, that a ~~security interest in an Excluded Agreement in favor of~~ Newspaper Entity may not be merged or consolidated with or into MCC or a Restricted Subsidiary unless the ~~Secured Creditors shall attach immediately at such time as Grantor’s grant of~~ surviving entity is a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and, to the extent severable, shall attach immediately to any portion of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result in a breach, default or termination of such Excluded Agreement; or (b) equity interests in any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign SubsidiaryNewspaper Entity; (cii) any ~~“intent~~ Restricted Subsidiary (other than a Newspaper Entity) may sell, lease, transfer or otherwise dispose of any or all of its Property (upon voluntary liquidation or otherwise), provided that any such sale, lease, transfer or other disposition to ~~use” Trademark applications for which a statement~~ an Affiliate shall satisfy the requirements of ~~use has not been filed~~ Section 6.09, it being understood that any such sale, lease, transfer or other disposition to an Affiliate of real property that satisfies the requirements of clause (~~but only until such statement is filed whereupon such applications~~ vii) below, shall be ~~automatically subject~~ deemed to satisfy the ~~Lien granted herein and deemed included~~ requirements of Section 6.09; (iii) any Newspaper Entity (other than any Acquisition Subsidiary obligated at the time in respect of any Indebtedness permitted under Section 6.03(h)) may sell, lease, transfer or otherwise dispose of any or all of its Property (upon voluntary liquidation or otherwise) to any other Newspaper Entity (other than to any Acquisition Subsidiary obligated at the ~~Collateral~~time in respect of any Indebtedness permitted under Section 6.03(h)); (div) MCC or any ~~rights~~ of its Restricted Subsidiaries may (whether by way of purchase of assets or ~~property to the extent that~~ stock, by merger or consolidation or otherwise) make any ~~valid and enforceable law or regulation applicable to such rights or property prohibits the creation~~ acquisition of a ~~security interest therein;~~ business, and the related assets, of any other Person (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (f) in the case of foreign jurisdictions, those assets to the extent that such grant of a security interest is prohibited by the limitations of applicable local law; (g) i.e. any ~~Equity Interests in a joint venture~~ Person other than MCC or other non Wholly-Owned Subsidiary to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section 10.02(xiii) of the Credit Agreement, or is subject to any Liens permitted under Section 10.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4its Restricted Subsidiaries), ~~for so long as, and to the extent~~ provided that, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such Lien.:

Appears in 1 contract

Sources: Credit Agreement (Morris Publishing Group LLC)

Certain Exceptions. ~~Notwithstanding Section 1.1, no security interest is or will be granted pursuant hereto in any right, title or interest~~ The provisions of ~~any Grantor under or in (each of~~ subsection (a) ~~through (h) collectively~~above shall not apply to, ~~the “Excluded Collateral”):~~ and Lessee shall have no indemnity liability to any Indemnitee under subsection (a) above with respect to: (i) Taxes imposed (whether by withholding or otherwise) on any ~~Instruments~~Indemnitee which are imposed on, ~~Contracts~~measured in whole or in part by, ~~Chattel Paper~~or based upon the income, ~~General Intangibles~~earnings and profits, ~~licenses~~ capital or ~~other contracts~~ net worth of such Indemnitee or ~~agreements with~~ any Tax which is a franchise tax imposed for the privilege of doing business, a capital gains tax, excess profits tax, accumulated earnings tax, minimum or ~~issued by Persons~~ alternative minimum tax, tax preference, personal holding company tax, or a gross receipts or gross income tax (other than ~~Holdings or~~ a ~~Subsidiary of Holdings or an Affiliate thereof (collectively, “Excluded Agreements”) that would otherwise be included~~ tax in the ~~Collateral (and such Excluded Agreements shall not be deemed to constitute~~ nature of a ~~part of the Collateral~~sales or use, license, value added, excise or property tax) for so long as, and to the extent that, the granting of such a security interest pursuant hereto would result in a breach, default or termination of such Excluded Agreements (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided, however, ~~that~~ that, notwithstanding the foregoing exclusions, there shall not be excluded (A) any net increase in Taxes resulting from the imposition of Taxes by any jurisdiction (other than the United States or a ~~security interest~~ jurisdiction in ~~an Excluded Agreement in favor~~ which such Indemnitee has its principal place of ~~the Secured Creditors shall attach immediately at~~ business) if such ~~time as Grantor’s grant of a security interest in such Excluded Agreement no longer results in a breach, default or termination thereof or thereunder and,~~ Indemnitee would not have been required to ~~the extent severable, shall attach immediately~~ file returns with respect to ~~any portion~~ Taxes of such Excluded Agreement that does not result in a respective breach, default or termination thereof or thereunder, including, without limitation, any proceeds of such Excluded Agreement; provided further, that, in furtherance of type had the foregoing, each Grantor agrees that it shall not amend any material Excluded Agreement in effect as of the date hereof so that the grant of a security interest therein would result in a breach, default or termination of such Excluded Agreement; or (b) equity interests in any first-tier foreign Subsidiary in excess of 65% of the total outstanding Voting Equity Interests of such first-tier foreign Subsidiary; (c) any “intent to use” Trademark applications for which a statement of use has Airship not been ~~filed~~ used, operated or located, or Lessee had not conducted its operations in, such jurisdiction or (but only until such statement is filed whereupon such applications shall be automatically subject to the Lien granted herein and deemed included in the Collateral); (d) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; (e) those assets as to which the Collateral Agent shall determine in its sole discretion that the cost of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby; (fB) in the case of ~~foreign jurisdictions~~Lessor, ~~those assets~~ any Taxes (other than Taxes based on or measured by net income) which are by their terms in lieu of Taxes which would otherwise be indemnified; (ii) Taxes imposed as a result of a sale, transfer or other disposition (whether voluntary or involuntary) by the Indemnitee of any interest of such Indemnitee in the Airship or any part thereof, or any Operative Agreement (other than the leasing of the Airship to Lessee pursuant hereto or the purchase of the Airship pursuant to the Purchase Agreement Assignment and the Purchase Agreement, unless such sale, transfer or other disposition shall have occurred (A) because of any act or omission of Lessee under Sections 11 or 12 hereof or (B) at any time while a Default or Event of Default shall be continuing; (iii) Taxes to the extent ~~that such grant~~ incurred or imposed in respect of ~~a security interest is prohibited by~~ any period (or portion thereof) after the ~~limitations of applicable local law;~~expiration or earlier termination hereof with respect to the Airship (other than pursuant to Section 18 hereof); or (giv) Taxes which result solely from acts or omissions of any ~~Equity Interests in a joint venture or other non Wholly-Owned Subsidiary~~ Indemnitee which are unrelated to the extent that granting a security interest in or lien on such Equity Interests is not permitted by the governing documents of such joint venture or other non Wholly-Owned Subsidiary; (h) Excluded Deposit Accounts; and (i) any of the following: (1) any asset that would otherwise be included in the Collateral (and such asset shall not be deemed to constitute a part of the Collateral) if such asset is subject to a Lien permitted by Section 10.01(vi) of the Credit Agreement; (2) any Equipment, machinery or other fixed asset that would otherwise be included in the Collateral (and such Equipment, machinery or other fixed asset shall not be deemed to constitute a part of the Collateral) if such Equipment, machinery or other fixed asset is subject to a Lien permitted by Section 10.01(vii) of the Credit Agreement; (3) any property that would otherwise be included in the Collateral (and such property shall not be deemed to constitute a part of the Collateral) if such property has been sold or otherwise transferred in connection with a sale-leaseback transaction permitted under Section 10.02(xiii) of the Credit Agreementtransactions contemplated by, or is subject to any Liens permitted under Section 10.01(xviii) of the Credit Agreement, or constitutes the Proceeds or products of any property that has been so sold or otherwise transferred so long as such Proceeds or products remain subject to the Liens referenced above in this clause (b)(iii); and (4) any property or asset that would otherwise be included in the Collateral (and such property or asset shall not be deemed to constitute a part of the Collateral) if such property or assets is subject to a Lien permitted by Section 10.01(xiv) of the Credit Agreement; in each case pursuant to preceding clauses (i)(1) through (4), for so long as, and to the extent thatare forbidden by, the granting or existence of such a security interest pursuant hereto would result in a breach, default or termination of any agreement relating to the respective Lien or obligations secured thereby (in each case, except to the extent any such breach, default or termination would be rendered ineffective under the UCC or other applicable law); provided that immediately upon repayment of the Indebtedness and/or other monetary obligation secured by a Lien referenced in clauses (i)(1) through (4), the relevant Grantor shall be deemed to have granted a security interest in all of its rights, title and interests under or in such asset, Equipment or other property that is the subject of such LienOperative Agreements.

Appears in 1 contract

Sources: Lease Agreement (Airship International LTD)

Common use of Certain Exceptions Clause in Contracts