Collateral. Subject to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising: (i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto; (ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto; (iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral; (iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and (v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 8 contracts
Sources: Revolving Credit Agreement (MN8 Energy, Inc.), Revolving Credit Agreement (MN8 Energy, Inc.), Revolving Credit Agreement (MN8 Energy, Inc.)
Collateral. Subject to (a) The Borrower, as security for the terms of the applicable Collateral Documents, to secure the prompt payment and performance of the Secured Obligations hereunderwhen due, pursuant hereby assigns, conveys, transfers, delivers and sets over to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantIssuing Lender, and shall pledge and/or assign by way of security, grants to the Administrative Agent, for the benefit of each Issuing Lender a Lien on and a security interest in all assets of the Secured PartiesBorrower other than its books and records and its right, as applicable, a first priority, security title and interest and ▇▇▇▇ in and on its interests in the following, whether (now owned existing or hereafter acquired or arising:) in, to and under the Regulatory Account and the Administrative Account, including the Borrower’s right, title and interest (now existing or hereafter acquired or arising) in, to and under the following (collectively, the “Collateral”):
(i) any the Borrower’s interest, if any, in the Reinsurance Trust Account; provided, that such Lien and security interest is subject in all Unfunded Capital Commitments cases and in every respect to the rights of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on Reinsurance Trustee in such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretointerest;
(ii) the Surplus Account, and all Cash, securities, Instruments and other property held in the Surplus Account from time to time, and all certificates and Instruments, if any, from time to time representing the Surplus Account or any property therein. Notwithstanding the status of the Surplus Account and financial assets as Collateral, the Surplus Account and such assets shall remain available to make payments in the priority and to the recipients identified pursuant to the Priority of Payments. In addition, the Issuing Lender agrees not to issue any Notice of Exclusive Control (as defined in the Securities Account Control Agreement) unless an Event of Default has occurred and is continuing. The Issuing Lender hereby authorizes any disposition of property from the Surplus Account free of any security interest if, and only to the extent relating to that, such disposition is made, and the Unfunded Capital Commitments proceeds are applied, in accordance with the Priority of the Investors constituting Collateral in clause Payments;
(iiii) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Lettersall rights, if any, of such Investors and the Borrower in (zA) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toCash, in each case of clauses (x)securities, (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security Instruments and other property with respect held or deemed to such Collateral;
(iv) each Collateral Account, including but not limited to be held in any and all funds and financial assets on deposit therein express or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, constructive trust established pursuant to the terms of the Guarantor’s Governing Documents, Reinsurance Agreement from time to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreementtime, and (B) the proceeds of such withdrawn funds (the items in (A) all certificates and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX InsidersInstruments, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include from time to time representing any Portfolio Investment, any Portfolio Assets such express or constructive trust or any Excluded Proceedsproperty therein; provided, (iii) that such Lien and security interest is subject in all cases and in every respect to the term “Collateral” shall not include any collateral posted or received rights of the Ceding Company in connection with the Swap Agreements, such rights;
(iv) any and all of the Collateral following, whether now existing or hereafter arising and wheresoever the same may be subject to Permitted Lienslocated: all rights of the Borrower under the Transaction Documents, accounts (other than the Regulatory Account and the Reinsurance Trust Account), chattel paper, deposit accounts, documents, equipment, general intangibles, goods, instruments, inventory, investment property, letters of credit, letter-of-credit rights, payment intangibles, securities accounts and supporting obligations;
(v) a all other property or rights delivered or assigned by the Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition on its behalf to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject Issuing Lender from time to control agreements time under this Agreement or other restrictions and otherwise, to secure or guarantee payment of the Secured Obligations; and
(vi) to the Administrative Agent extent not covered above, all products and proceeds of, and all dividends, collections, earnings, accruals, and other payments with respect to, any or all of the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 6 contracts
Sources: Reimbursement Agreement (Protective Life Insurance Co), Reimbursement Agreement (Protective Life Corp), Reimbursement Agreement (Protective Life Insurance Co)
Collateral. Subject Except for any items referred to on Schedule 9.13(b):
(a) All documents and instruments, including Uniform Commercial Code or other applicable personal property and financing statements, reasonably requested by the Collateral Agent to be filed, registered or recorded to create the Liens intended to be created by any Security Document and perfect such Liens to the terms extent required by, and with the priority required by, such Security Document shall have been delivered to the Collateral Agent for filing, registration or recording and none of the applicable Collateral Documentsshall be subject to any other pledges, to secure the payment and performance security interests or mortgages, except for Liens permitted under Section 10.2.
(b) All Stock of the Obligations hereunderBorrower and all Stock of each Restricted Subsidiary of the Borrower directly or indirectly owned by the Borrower or any Subsidiary Guarantor, in each case as of the Closing Date, shall have been pledged pursuant to a the Pledge Agreement (except that such Credit Parties shall not be required to pledge any Excluded Stock) and the Collateral Account PledgeAgent shall have received all certificates, a Security if any, representing such securities pledged under the Pledge Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge accompanied by instruments of transfer and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ undated powers endorsed in and on its interests in the following, whether now owned or hereafter acquired or arising:blank.
(i) any and Except with respect to intercompany Indebtedness, all Unfunded Capital Commitments evidences of the Investors, whether now or hereafter committed, including but not limited Indebtedness for borrowed money in a principal amount in excess of $10,000,000 (individually) that is owing to the right Borrower or any Subsidiary Guarantor shall be evidenced by a promissory note and shall have been pledged pursuant to draw down Investor Capital Contributions on the Pledge Agreement, and the Collateral Agent shall have received all such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls promissory notes, together with undated instruments of transfer with respect thereto;thereto endorsed in blank.
(ii) to the extent relating to the Unfunded Capital Commitments All Indebtedness of the Investors constituting Collateral in clause (i) aboveBorrower and each of its Restricted Subsidiaries that is owing to any Credit Party shall be evidenced by the Intercompany Note, (x) which shall be executed and delivered by the Constituent Documents, (y) the Subscription Agreements Borrower and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral Restricted Subsidiaries and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn shall have been pledged pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Pledge Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may Agent shall have received such Intercompany Note, together with undated instruments of transfer with respect thereto endorsed in blank.
(d) The Guarantee shall be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” full force and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereineffect.
Appears in 6 contracts
Sources: Credit Agreement (Samson Resources Corp), Credit Agreement, Credit Agreement (Samson Resources Corp)
Collateral. Subject In addition to, and not in substitution for, any Property delivered, conveyed, transferred or assigned to you under any Loan Document as security for any or all of Applicant's obligations and liabilities to you at any time existing under or in connection with any L/C Document or any Loan Document, Applicant agrees to deliver, convey, transfer and assign to you on demand, as security, Property of a value and character satisfactory to you, (i) if you at any time reasonably feel insecure about Applicant's ability or willingness to repay any amounts which you have paid or may pay in the terms future on any Demand or in honoring any other of your obligations under or in connection with any Credit, or (ii) without limiting the generality of the applicable Collateral Documentsforegoing, to secure if any temporary or permanent restraining order, preliminary or permanent injunction, or any other pretrial or permanent injunctive or similar relief is obtained restraining, prohibiting or enjoining you, any of your correspondents, or any advising, confirming, negotiating, paying or other bank from paying or negotiating any Demand or honoring any other obligation under or in connection with any Credit. Applicant agrees that the payment and performance receipt by you or any of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way your agents or correspondents at any time of any kind of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, cash, shall not be deemed a waiver of any of your rights or powers under this Agreement. Applicant agrees to sign and deliver to you on demand, all such deeds of trust, security agreements, financing statements and other documents as you shall at any time request which are necessary or desirable (in your sole opinion) to grant to you an effective and perfected security interest in and to any or all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant . Applicant agrees to pay all filing and recording fees related to the Credit Agreement if deposited or credited perfection of any security interest granted to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors you in accordance with the terms hereof this Section. Applicant hereby agrees that any or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds all of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” held and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, disposed of as provided thereinin this Agreement by you. Upon any transfer, sale, delivery, surrender or endorsement of any Document or Property which is or was part of the Collateral, Applicant will indemnify and hold you and your agents and correspondents harmless from and against each and every claim, demand, action or suit which may arise against you or any of your agents or correspondents by reason of such transfer, sale, delivery, surrender or endorsement.
Appears in 5 contracts
Sources: Standby Letter of Credit Agreement, Standby Letter of Credit Agreement (Handspring Inc), Standby Letter of Credit Agreement (Handspring Inc)
Collateral. Subject to the terms The Collateral under this Security Agreement includes all of the applicable Collateral Documents, to secure the payment and performance following assets of the Obligations hereunderDebtor which are or are to be installed, pursuant attached, and/or used upon or in connection with, relate to a Collateral Account Pledge, a Security Agreementor arise from (including without limitation the ownership and/or operation of) the Project, the related financing statements and Gaming Facility Site and/or the other related documentsProject Facilities, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired (collectively all of the following property and similar or arising:after-acquired property under this Section 2 being hereinafter referred to as the "Collateral").
(a) any Furnishings and Equipment (as defined in the Management Contract); and each of the foregoing whether now owned or hereafter at any time acquired by Debtor and wherever located, and includes all replacements, additions, parts, appurtenances, accessions, substitutions, repairs, proceeds, products, offspring, rents and profits, license rights and software attached or relating thereto or therefrom, and all documents, records, ledger sheets and files of Debtor relating thereto; together further with all proceeds of any such Collateral, including, without limitation (i) any and all Unfunded Capital Commitments of the Investors, whether whatever is now or hereafter committedreceivable or received by Debtor upon the sale, including but not limited to the right to draw down Investor Capital Contributions on exchange, collection or other disposition of any item of Collateral, whether voluntary or involuntary, whether such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
proceeds constitute equipment, intangibles, or other assets; (ii) to the extent relating to the Unfunded Capital Commitments any such items which are now or hereafter acquired by Debtor with any proceeds of the Investors constituting Collateral in clause hereunder; (iiii) aboveall warehouse receipts, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, bills of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants lading and other agreements documents of title now or hereafter covering such Investors or guarantors contained therein, any goods; and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind insurance proceeds or description to the extent evidencing or supporting obligations any payments under any indemnity, warranty or guaranty now or hereafter payable by reason of the foregoing Collateral and any and all security and other property loss or damage or otherwise with respect to such Collateral;
(iv) any item of Collateral or any proceeds thereof. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Management Contract and each category of Collateral Accountthat is defined under the UCC shall have the meanings set forth therein. As they are used in this Agreement, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of listed below shall have the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.following meanings:
Appears in 5 contracts
Sources: Security Agreement (Lakes Entertainment Inc), Security Agreement (Lakes Entertainment Inc), Security Agreement (Lakes Entertainment Inc)
Collateral. Subject With respect to the terms Collateral at any time prior to the release of the applicable Lien on the Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof of the Security Agreement: (i) any Significant Collateral Security Failure Event with respect to the United States exists and is continuing; (ii) any Significant Collateral Security Failure Event with respect to two Material Foreign Jurisdictions exists and is continuing; or for (c) the Borrower or Dart asserts, in any pleading in any court of competent jurisdiction, that any such security interest is invalid or unenforceable and, in the case of any such assertion by Dart, the Borrower fails to cause Dart to rescind such assertions within 10 days after the Borrower has actual knowledge of such assertions; provided that the Borrower’s or Dart’s assertion that a security interest is invalid or unenforceable is not based on a change of law in the jurisdiction that results in the jurisdiction not permitting the granting, recordation or perfection of security interests in the Collateral; then, and in every such event (other purpose permitted under than an event with respect to the Guarantor’s Governing Documents Borrowers described in clause (f) of this Section 7.01), and this Credit Agreementat any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrowers, take either or both of the following actions, at the same or different times: (i) terminate the Revolving Commitments, and thereupon the Revolving Commitments shall terminate immediately, and (Bii) declare the proceeds of such withdrawn funds Loans then outstanding to be due and payable in whole (the items or in (A) part, in which case any principal not so declared to be due and (Bpayable may thereafter be declared to be due and payable), collectively “Excluded Proceeds”). Notwithstanding and thereupon the foregoing principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or anything other notice of any kind, all of which are hereby waived by the Borrowers; and in case of any event with respect to the contrary Borrowers described in clause (f) of this Credit Agreement or any other Loan Document (i) Section 7.01, the term “Collateral” Revolving Commitments shall not include automatically terminate and the Unfunded Capital Commitments principal of the SOX InsidersLoans then outstanding, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any together with accrued interest thereon and all fees and other interests obligations of the SOX InsidersBorrowers accrued hereunder, if anyshall automatically become due and payable, unless so elected without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinBorrowers.
Appears in 5 contracts
Sources: Credit Agreement (Tupperware Brands Corp), Credit Agreement (Tupperware Brands Corp), Credit Agreement (Tupperware Brands Corp)
Collateral. (a) Subject to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property Limited Conditionality Provision with respect to this Section 6.02(a), all Capital Stock of each directly owned Subsidiary of each Credit Party shall have been pledged (other than Capital Stock of any Excluded Subsidiary, in which case, the maximum amount of Capital Stock of such Collateral;
(ivExcluded Subsidiary permitted to be pledged pursuant to this Agreement shall be pledged) each pursuant to, and subject to the limitations set forth in the Security Pledge Agreement, and the Collateral AccountAgent shall have received all certificates representing such securities pledged under the Security Pledge Agreement, including but not limited to any accompanied by instruments of transfer and all funds and financial assets on deposit therein or credited theretoundated stock powers endorsed in blank; and
(vb) any the Borrower shall have executed and all proceeds of any delivered to the Collateral Agent a collateral assignment, in form and substance satisfactory to the Collateral Agent, of the foregoing Collateral includingAcquisition Documents; provided that, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to any security interest in any Collateral is not or cannot be provided and/or perfected on the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments Closing Date (other than Permitted Investments deposited the pledge (and delivery in or credited to the case of the immediately following clause (1)) and perfection of the security interests (1) in the certificated equity securities of the Target, any such account), to make payments or distributions to Investors in accordance with Domestic Subsidiaries of Holdings (other than the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents Target and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (Aits Subsidiaries) and (B)2) in other assets of any Domestic Subsidiaries of Holdings (other than the Target and its Subsidiaries) with respect to which a Lien may be perfected solely by the filing of a financing statement under the UCC) after the Borrower’s use of commercially reasonable efforts to do so, collectively “Excluded Proceeds”). Notwithstanding then the foregoing or anything provision and/or perfection of a security interest in such Collateral shall not constitute a condition precedent to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments availability of the SOX InsidersCredit Facility on the Closing Date, including but not limited instead shall be required to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitmentsbe delivered, or any other interests of a security interest therein perfected, not more than 90 days after the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, Closing Date (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral as such period may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) extended by the Administrative Agent and in its sole discretion) (collectively, the Secured Parties shall not have any Lien on any property that is not “CollateralLimited Conditionality Provision”, except in connection with any Swap Agreement, as provided therein).
Appears in 5 contracts
Sources: Credit Agreement (Grindr Inc.), Credit Agreement (Grindr Inc.), Credit Agreement (Tiga Acquisition Corp.)
Collateral. Subject to To secure performance by the terms Borrower Parties of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, Obligations: (i) pursuant to a the Collateral Account Pledge, a Security AgreementPledges and Account Control Agreements (if applicable), the related financing statements Loan Parties will grant to the Administrative Agent, for the benefit of each of the Lenders, an exclusive, perfected, first priority security interest and lien in and to each Collateral Account and all of the other related documentsproceeds thereof as more fully described therein; and (ii) pursuant to the Security Agreements, to the extent of their respective interests therein, the Initial Borrower, the Guarantor shall grant, and shall pledge and/or assign by way of security, the Guarantor General Partner will grant to the Administrative Agent, for the benefit of each of the Secured Parties, as applicablean exclusive, a perfected, first priority, priority security interest and ▇▇▇▇ in and Lien on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and to all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained collateral described therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, the Capital Calls, Capital Commitments, Unfunded Commitments and Capital Contributions, including, without limitation, any rights to make Capital Calls, receive payment of Capital Commitments and enforce the payment thereof and to enforce the payment thereof or any guarantees thereof now existing or hereafter arising (the collateral in clauses (i)-(ii) of this Section 5.01 being, collectively, the “Collateral”). For the avoidance of doubt, the Obligations of each Borrower shall be cross-secured by the Unfunded Commitments of all Borrowers and the Guarantor. In order to secure further the payment and performance of the records Obligations and to effect and facilitate the Lenders’ right of setoff, each Loan Party hereby irrevocably appoints the Guarantor concerning Administrative Agent as subscription agent and the sole party entitled in the name of any Loan Party, upon the occurrence and during the continuance of an Event of Default, to make any Capital Calls on the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, Investors pursuant to the terms of each of the Guarantor’s Governing DocumentsAgreements, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit AgreementSecurity Agreements, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)Subscription Agreements. Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other contained herein, upon the occurrence and during the continuation of an Event of Default, no Loan Document Party shall make a Capital Call unless such Capital Call is (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited pursuant to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests last sentence of the SOX Insiders, if any, unless so elected by the Guarantor in its discretionSection 5.02(d), (ii) otherwise with the term “Collateral” shall not include any Portfolio Investmentprior written consent of Administrative Agent, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) at the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinAgent’s request.
Appears in 5 contracts
Sources: Credit Agreement (Overland Advantage), Revolving Credit Agreement (Overland Advantage), Revolving Credit Agreement (Overland Advantage)
Collateral. Subject (a) All outstanding Stock of each Subsidiary of the Borrower directly owned by the Borrower or any Subsidiary Guarantor, in each case, as of the Closing Date, shall have been pledged pursuant to the terms Pledge Agreement (except that such Credit Parties shall not be required to pledge any Excluded Stock and Stock Equivalents) and the Collateral Representative shall have received all certificates, if any, representing such securities pledged under the Pledge Agreement, accompanied by instruments of transfer and undated stock powers endorsed in blank.
(b) All Indebtedness of the applicable Collateral Documents, to secure the payment Borrower and performance each Subsidiary of the Obligations hereunder, pursuant Borrower that is owing to the Borrower or a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Subsidiary Guarantor shall grant, and shall pledge and/or assign by way of securityshall, to the extent exceeding $10,000,000 in aggregate principal amount, be evidenced by one or more global promissory notes and shall have been pledged pursuant to the Pledge Agreement, and the Collateral Representative shall have received all such promissory notes, together with instruments of transfer with respect thereto endorsed in blank.
(c) All documents and instruments, including Uniform Commercial Code or other applicable personal property and financing statements, reasonably requested by the Collateral Agent (at the direction of the Administrative Agent acting reasonably) to be filed, registered or recorded to create the Liens intended to be created by any Security Document to be executed on the Closing Date and to perfect such Liens to the extent required by, and with the priority required by, such Security Document, unless otherwise agreed by the Collateral Agent (acting at the direction of the Administrative Agent), shall have been delivered to the Collateral Representative in proper form for the benefit of each filing, registration or recording and none of the Secured Parties, as applicable, a first priorityCollateral shall be subject to any other pledges, security interest and interests or mortgages, except for ▇▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:permitted hereunder.
(id) any The Borrower shall deliver to the Collateral Agent a completed Perfection Certificate, executed and all Unfunded Capital Commitments delivered by an Authorized Officer of the InvestorsBorrower, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls together with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)attachments contemplated thereby. Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or herein, with respect to any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited security documents relating to real property to the right extent constituting Collateral, the Borrower agrees to draw down Investor Capital Contributions on deliver or cause to be delivered such Unfunded Capital Commitmentsdocuments and instruments, and take or any cause to be taken such other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral actions as may be subject required to Permitted Liensgrant and perfect such security interests, (v) a Borrower on or the Guarantor may maintain other bank accounts or securities accounts in addition prior to the Collateral Accounts date that will not is 120 days after the Closing Date or such longer period of time as may be considered “Collateral” and such other accounts shall not be subject agreed to control agreements or other restrictions and (vi) by the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinits reasonable discretion.
Appears in 5 contracts
Sources: Credit Agreement (NRG Energy, Inc.), Letter of Credit Facility Agreement (Talen Energy Corp), Credit Agreement (Talen Energy Corp)
Collateral. Subject In addition to, and not in substitution for, any Property delivered, conveyed, transferred or assigned to you under any Loan Document as security for any or all of Applicant's obligations and liabilities to you at any time existing under or in connection with any L/C Document or any Loan Document, Applicant grants to you a security interest in and to the terms following Collateral, whether or not any such Collateral is in your possession or control or the possession or control of the applicable Collateral Documentsyour agents or correspondents or in transit to, or set apart for, you or your agents or correspondents, until such time as all Applicant's obligations and liabilities to secure the payment you at any time existing under or in connection with each L/C Document and performance of the Obligations hereundereach Loan Document have been fully paid and discharged, pursuant to a Collateral Account Pledgeall as security for such obligations and liabilities, a Security Agreement(a) all Applicant's property, the related financing statements claims, demands, right, title and the other related documents, the Guarantor shall grant, interest in and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit balance of each of the Secured PartiesApplicant's deposit accounts with you now or at any time hereafter existing, as applicableand all evidences of such deposit accounts, a first priority(b) all Property belonging to Applicant or in which it may have an interest, security interest and ▇▇▇▇ now or at any time hereafter delivered, conveyed, transferred, assigned, pledged or paid to you or your agents or correspondents in and on its interests in the followingany manner whatsoever, whether now owned as security or hereafter acquired for safekeeping or arising:
(i) any and all Unfunded Capital Commitments of the Investorsotherwise, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (items received for collection or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreementtransmission, and (B) the proceeds of such withdrawn funds (the items items, whether or not such Property is in (A) whole or in part released to Applicant on trust or bailee receipt or otherwise, and (B)c) where Applicant is more than one person or entity, collectively “Excluded Proceeds”)all right, title and interest of each of Applicants in and to all the Property which any of Applicants may now or hereafter obtain as security for the obligations of any one or more of Applicants to one or more of the others of Applicants arising under or in connection with the transaction to which any Credit relates. Notwithstanding the foregoing Further, in addition to, and not in substitution for, any Property delivered, conveyed, transferred or anything assigned to the contrary you under any Loan Document as security for any or all of Applicant's obligations and liabilities to you at any time existing under or in this Credit Agreement connection with any L/C Document or any other Loan Document Document, Applicant agrees to deliver, convey, transfer and assign to you on demand, as security, Property of a value and character satisfactory to you, (i) if you at any time feel insecure about Applicant's ability or willingness to repay any amounts which you have paid or may pay in the term “Collateral” shall not include future on any Demand or in honoring any other of your obligations under or in connection with any Credit, or (ii) without limiting the Unfunded Capital Commitments generality of the SOX Insidersforegoing, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitmentsif any temporary or permanent restraining order, preliminary or permanent injunction, or any other interests of the SOX Insiderspretrial or permanent injunctive or similar relief is obtained restraining, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investmentprohibiting or enjoining you, any Portfolio Assets of your correspondents, or any Excluded Proceedsadvising, (iii) the term “Collateral” shall not include confirming, negotiating, paying or other bank from paying or negotiating any collateral posted Demand or received honoring any other obligation under or in connection with any Credit. Applicant agrees that the Swap Agreementsreceipt by you or any of your agents or correspondents at any time of any kind of security, including, without limitation, cash, shall not be deemed a waiver of any of your rights or powers under this Agreement. Applicant agrees to sign and deliver to you on demand, all such deeds of trust, security agreements, financing statements and other documents as you shall at any time request which are necessary or desirable (ivin your sole opinion) to grant to you an effective and perfected security interest in and to any or all of the Collateral. Applicant agrees to pay all filing and recording fees related to the perfection of any security interest granted to you in accordance with this Section. Applicant hereby agrees that any or all of the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” held and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, disposed of as provided thereinin this Agreement by you. Upon any transfer, sale, delivery, surrender or endorsement of any Document or Property which is or was part of the Collateral, Applicant will indemnify and hold you and your agents and correspondents harmless from and against each and every claim, demand, action or suit which may arise against you or any of your agents or correspondents by reason of such transfer, sale, delivery, surrender or endorsement.
Appears in 4 contracts
Sources: Standby Letter of Credit Agreement (Miscor Group, Ltd.), Standby Letter of Credit Agreement (Plantronics Inc /Ca/), Secured Credit Agreement (First Banks, Inc)
Collateral. Subject (a) The parties hereto intend that this Agreement constitute a security agreement and the transactions effected hereby constitute secured loans by the Lenders to the terms of Borrower under Applicable Law. As collateral security for the applicable Collateral Documentsprompt, to secure the complete and indefeasible payment and performance in full when due, whether by lapse of time, acceleration or otherwise, of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, Borrower hereby grants to the Administrative Agent, as agent for the benefit of each of the Secured Parties, as applicable, a first priority, lien on and security interest in all of the Borrower’s right, title and ▇▇▇▇ in interest in, to and on its interests in under the following, whether now existing or owned or hereafter arising or acquired or arising:by the Borrower (collectively, the “Collateral”):
(i) any the Receivables and all Unfunded Capital Commitments of the Investorsrelated Contracts, whether now or hereafter committed, (including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors service the Receivables in connection therewith), and to issue Investor Capital Calls any accounts or obligations evidenced thereby, any guarantee thereof, all Collections and all monies due (including any payments made under any guarantee or similar credit enhancement with respect theretoto any such Receivables) or to become due or received by any Person in payment of any of the foregoing on or after the related Cutoff Date;
(ii) the 2017-1A SUBI, the 2017-1A SUBI Certificate and any related rights, authority, powers and privileges of the holder and the beneficiary thereof under the related Trust Documents, including a beneficial interest in the North Carolina Receivables from time to time allocated to the extent relating 2017-1A SUBI, including all monies due and to become due with respect thereto and all proceeds thereof, and all payments and distributions thereunder of whatever kind or character and whether in cash or other property, at any time made or distributable to the Unfunded Capital Commitments Borrower thereunder or in respect thereof, whether due or to become due, including, without limitation, the immediate and continuing right of the Investors constituting Collateral in clause Borrower to receive and collect all amounts payable to the holder thereof, and all of the Borrower’s rights, remedies, powers, interests and privileges under the Trust Documents (i) abovewhether arising pursuant to the terms thereof or otherwise available to Borrower), (x) including, without limitation, the Constituent right to enforce the Trust Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) to give or withhold any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toconsents, in each case of clauses (x)requests, (y) and (z)notices, any directions, approvals or waivers thereunder and all representationsamounts due and to become due thereunder, warranties, covenants and other agreements of such Investors whether payable as indemnities or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretodamages for breach thereof;
(iii) any each First Tier Purchase Agreement and all agreements, instruments remedies thereunder and other documents of every kind or description the assignment to the extent evidencing Administrative Agent of all UCC financing statements filed by Regional Management against each Originator under or supporting obligations under any of in connection with the foregoing Collateral and any and all security and other property with respect to such CollateralFirst Tier Purchase Agreement;
(iv) each Collateral Accountthe Second Tier Purchase Agreement and all remedies thereunder and the assignment to the Administrative Agent of all UCC financing statements filed by the Borrower against Regional Management under or in connection with the Second Tier Purchase Agreement;
(v) the Account Collateral;
(vi) all Liquidation Proceeds;
(vii) all Hedge Collateral;
(viii) all Receivable Files, Servicer Files and the Schedule of Receivables, and the documents, agreements and instruments included in the Receivable Files and Servicer Files, including but not limited rights of recourse of the Borrower against the related Originators and Regional Management;
(ix) all Records, documents and writings evidencing or related to any the Receivables or the Contracts;
(x) all guaranties, indemnities, warranties, insurance (and proceeds and premium refunds thereof), payments and other agreements or arrangements of whatever character from time to time supporting or securing payment of the Receivables, whether pursuant to the related Contracts or otherwise;
(xi) all funds security interests, Liens, guaranties and financial assets on other encumbrances in favor of or assigned or transferred to the Borrower in and to the Receivables;
(xii) all deposit therein or credited theretoaccounts, monies, deposits, funds, accounts and instruments relating to the foregoing; and
(vxiii) any all income, products, accessions and all proceeds of the foregoing.
(b) The grant under this Section does not constitute and is not intended to result in a creation or an assumption by any Agent or any of the foregoing Collateral including, without limitation, Secured Parties of any obligation of the Borrower or any other Person in connection with any or all of the records of the Guarantor concerning Collateral or under any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (agreement or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)instrument relating thereto. Notwithstanding the foregoing or anything Anything herein to the contrary in this Credit Agreement or any other Loan Document notwithstanding, (i) the term “Collateral” Borrower shall not include remain liable under the Unfunded Capital Commitments of the SOX Insiders, including but not limited Contracts to the right extent set forth therein to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests perform all of its duties and obligations thereunder to the SOX Insiders, same extent as if any, unless so elected by the Guarantor in its discretionthis Agreement had not been executed, (ii) the term “Collateral” exercise by the Administrative Agent of any of its rights in the Collateral shall not include release the Borrower from any Portfolio Investment, any Portfolio Assets of its duties or any Excluded Proceeds, obligations under the Collateral and (iii) the term “Collateral” no Agent or any Secured Party shall not include have any collateral posted obligations or received in connection with the Swap Agreements, (iv) liability under the Collateral may by reason of this Agreement, nor shall any Agent or any Secured Party be subject obligated to Permitted Liensperform any of the obligations or duties of the Borrower thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.
(c) Notwithstanding the foregoing grant of security interest, no account, instrument, chattel paper or other obligation or property of any kind due from, owned by or belonging to a Sanctioned Target shall be Collateral.
(vd) a Each of the Borrower and the Servicer represents and warrants as to itself that each remittance of Collections by the Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition Servicer to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent or any Lender under this Agreement will have been (i) in payment of a debt incurred by the Borrower in the ordinary course of business or financial affairs of the Borrower and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except Servicer and (ii) made in connection with any Swap Agreement, the ordinary course of business or financial affairs of the Borrower and the Servicer or as provided thereinrequired under the Basic Documents.
Appears in 4 contracts
Sources: Omnibus Amendment (Regional Management Corp.), Credit Agreement (Regional Management Corp.), Credit Agreement (Regional Management Corp.)
Collateral. Subject Notwithstanding anything herein to the contrary, in no event shall the security interest granted under Section 3.01 or 4.01 hereof attach to the following (collectively, the “Excluded Assets”) (a) any lease, license, General Intangible, contract or agreement to which any Grantor is a party or any of its rights or interests thereunder to the extent that (and for as long as) (i) such lease, license, General Intangible, contract or agreement, or assets subject thereto, are not assignable or capable of being encumbered as a matter of law or under the terms of the lease, license, General Intangible, contract or agreement applicable Collateral Documentsthereto (but solely to the extent that any such restriction shall be enforceable under applicable law, to secure the payment and performance including Sections 9-406, 9-407, 9-408 or 9-409 of the Obligations New York UCC, in respect of the grant of a security interest hereunder), without the consent of the licensor or lessor thereof, or other applicable party thereto and (ii) such consent has not been obtained; (b) any intent-to-use application for a Trademark to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use application for a Trademark under federal law, (c) any vehicle or other assets owned by any Grantor that is subject to a certificate of title, (d) in the case of voting Equity Interests of a Foreign Subsidiary of the Borrower or any Domestic Subsidiary of the Borrower which is treated as a Foreign Subsidiary of the Borrower for United States federal income purposes, more than 66% of such voting Equity Interests, (e) any Equity Interests in joint ventures or any non-wholly owned Subsidiaries, but only to the extent that the organizational documents or other agreements with other equity holders do not permit or otherwise restrict the pledge of such Equity Interest, (f) assets that are subject to or secured by Liens (i) permitted by Section 6.02(d), (g) or (m) of the Credit Agreement, (ii) permitted by Section 6.02(s) of the Credit Agreement securing Indebtedness described in Section 6.01(m)(i) of the Credit Agreement (but only to the extent that (x) the documentation pursuant to which such Liens were granted prohibits the granting of a Lien hereunder, pursuant (y) such documentation and Liens were in effect prior to such acquisition and (z) such Liens were not incurred, and such documentation was not entered into, by a Collateral Account Pledge, a Security Grantor in anticipation of such acquisition) of the Credit Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way (iii) in favor of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇▇ Fargo Bank, National Association on the cash collateral in respect of the Prepetition LC Facility or (iv) securing a purchase money obligation or Capital Lease Obligations permitted to be incurred pursuant to the provisions of the Credit Agreement, in each case to the extent the documentation relating to such Lien prohibits, or requires any consent for, any other Lien on such asset, (g) any governmental licenses or state or local franchises, charters and on its authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby, (h) any Letter-Of-Credit Rights to the following, whether now owned or hereafter acquired or arising:
extent perfection of a Lien in such Letter-Of-Credit Rights cannot be obtained by filing financing statements and (i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls Commercial Tort Claims with respect thereto;
(ii) to which notice is not required to be delivered under Section 4.04(f). With respect to any provision or restriction affecting the extent relating to Collateral the Unfunded Capital Commitments of reason for which such Collateral constitutes an Excluded Asset, immediately upon the Investors constituting Collateral in clause (i) aboveineffectiveness, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, lapse or termination of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors provision or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property restriction with respect to such Collateral;
(iv) each Excluded Asset, the Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreementshall include, and (B) such Grantor shall be deemed to have granted a security interest in, the proceeds of rights and interests in such withdrawn funds (Collateral as if such provision or restriction had never been in effect and if and when such property shall cease to be an Excluded Asset, such property shall be deemed at all times from and after the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything date thereof to the contrary in this Credit Agreement or any other Loan Document (i) the term “constitute Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 3 contracts
Sources: Revolving Facility Guarantee and Collateral Agreement (HMH Holdings (Delaware), Inc.), Term Facility Guarantee and Collateral Agreement (HMH Holdings (Delaware), Inc.), Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.)
Collateral. Subject (i) Without the consent of any other person, but subject to the terms of the any applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Intercreditor Agreement, the related financing statements applicable Credit Party or Parties and the other related documentsAdministrative Agent and/or Collateral Agent may (in its or their respective sole discretion), the Guarantor shall grant, and shall pledge and/or assign by way of securityor shall, to the Administrative Agentextent required by any Loan Document enter into any amendment or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion (including to cover additional amounts as secured obligations thereunder) or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of each of the Secured Parties, or as applicablerequired by local law to give effect to, a first priorityor protect, any security interest and ▇▇▇▇ in and on its interests in for the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments benefit of the Investors, whether now Secured Parties in any property or hereafter committed, including but not limited to so that the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls security interests therein comply with respect thereto;applicable Requirements of Law.
(ii) Notwithstanding anything in this Agreement or any Security Document to the extent relating to contrary, the Unfunded Capital Commitments Administrative Agent and/or, as applicable, the Collateral Agent may, in its sole discretion, grant extensions of time for the satisfaction of any of the Investors constituting requirements under Sections 5.10 and 5.11 or of any Security Document in respect of any particular Collateral in clause (i) above, (x) or any particular Subsidiary if it determines that the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions satisfaction thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;to such Collateral or such Subsidiary cannot be accomplished without undue expense or unreasonable effort or due to factors beyond the control of Holdings, the Borrower and the Restricted Subsidiaries by the time or times at which any such requirement would otherwise be required to be satisfied under this Agreement or any Security Document.
(iii) any and all agreements, instruments and other documents of every kind or description The Lenders hereby irrevocably agree that the Liens granted to the extent evidencing or supporting obligations under Collateral Agent by the Credit Parties on any Collateral shall be automatically released (i) in full, upon the termination of this Agreement and the foregoing Collateral and any and payment in full of all security and Secured Obligations (other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding than (A) any funds properly withdrawn from a Collateral Account contingent indemnification obligations and unasserted expense reimbursement obligations, (or that could be withdrawn pursuant B) obligations and liabilities under Secured Cash Management Agreements and Secured Hedging Agreements as to which arrangements satisfactory to the applicable Cash Management Bank or Hedge Bank shall have been made, and (C) Letters of Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors that have been cash collateralized in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and of this Credit Agreement, and (B) the proceeds backstopped with a back to back letter of such withdrawn funds (the items credit in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything a manner reasonably acceptable to the contrary in this Credit Agreement applicable Issuing Bank or any other Loan Document (i) rolled into another credit facility to the term “Collateral” shall not include the Unfunded Capital Commitments sole satisfaction of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretionapplicable Issuing Bank), (ii) upon the term “Collateral” shall not include sale or other disposition of such Collateral (including as part of or in connection with any Portfolio Investmentother sale or other disposition permitted hereunder) to any Person other than another Credit Party, to the extent such sale or other disposition is made in compliance with the terms of this Agreement (and the Collateral Agent may rely conclusively on a certificate to that effect provided by any Portfolio Assets or any Excluded ProceedsCredit Party upon its reasonable request without further inquiry), (iii) to the term “Collateral” shall not include any collateral posted extent such Collateral is comprised of property leased to a Credit Party, upon termination or received in connection with the Swap Agreementsexpiration of such lease, (iv) if the Collateral release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or such other percentage of the Lenders whose consent may be subject to Permitted Liensrequired in accordance with this Section 10.02), (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the extent the property constituting such Collateral Accounts that will not be considered “Collateral” and is owned by any Guarantor, upon the release of such other accounts shall not be subject to control agreements or other restrictions and Guarantor from its obligations under the applicable Guarantee (in accordance with the second following sentence), (vi) as required to effect any sale or other disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Security Documents, or (vii) if such assets constitute Excluded Property. Any such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those being released) upon (or obligations (other than those being released) of the Credit Parties in respect of) all interests retained by the Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral except to the extent otherwise released in accordance with the provisions of the Loan Documents. Additionally, the Lenders hereby irrevocably agree that any Restricted Subsidiary that is a Guarantor shall be released from the Guarantees upon consummation of any transaction not prohibited by this Agreement resulting in such Subsidiary ceasing to constitute a Restricted Subsidiary or upon becoming an Excluded Subsidiary. The Lenders hereby authorize the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap AgreementCollateral Agent, as provided thereinapplicable, to, and the Administrative Agent and the Collateral Agent agree to, execute and deliver any instruments, documents and agreements necessary or desirable or reasonably requested by the Borrower to evidence and confirm the release of any Guarantor or Collateral pursuant to the foregoing provisions of this paragraph, all without the further consent or joinder of any Lender and without any representation or warranty of any such Agent or Lender.
Appears in 3 contracts
Sources: Credit Agreement (Cvent Holding Corp.), Credit Agreement (Ping Identity Holding Corp.), Credit Agreement (Roaring Fork Holding, Inc.)
Collateral. Subject All present and hereafter acquired property of Company wherever located and however described and whether or not constituting a fixture (including, without limitation, any and all present and future property), together, in each case, with all proceeds thereof, including without limitation all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts (including health-care-insurance receivables and credit card receivables), chattel paper (whether tangible or electronic), deposit accounts, letter-of-credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities and all other investment property, supporting obligations, any other contract rights or rights to the terms payment of money, insurance claims and proceeds, money, patents, patent applications, trademarks, trademark applications, copyrights, copyright applications, trade names, other names, software, and all general intangibles (including all payment intangibles); together with all goodwill related to the foregoing property and all rights, liens, security interests and other interests which Company may at any time have by law or agreement against any account debtor, issuer or obligor obligated to make any such payment or against any of the applicable Collateral Documentsproperty of such account debtor, to secure the payment and performance of the Obligations hereunderissuer, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantor obligor, and shall pledge and/or assign by way of security, all other supporting obligations relating to the Administrative Agentforegoing, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the followingwhether now existing or hereafter arising, whether now owned or hereafter acquired or arising:
(i) any acquired; and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors products and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any proceeds of the foregoing Collateral property, including without limitation all accounts, instruments, chattel paper, investment property, letter-of-credit rights, letters-of-credit, other rights to payment, documents, deposit accounts, money, insurance proceeds and any general intangibles related to the foregoing property, and all security refunds of insurance premiums due or to become due under all insurance policies covering the foregoing property, all whether now owned or hereafter acquired, and other property wherever located, together with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)foregoing. Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein[ALL REGISTERED INTELLECTUAL PROPERTY SHOULD BE SPECIFICALLY IDENTIFIED BELOW. FAILURE TO SO LIST REGISTERED INTELLECTUAL PROPERTY DOES NOT EXCLUDE IT FROM COLLATERAL.]
Appears in 3 contracts
Sources: Loan and Security Agreement (Red Cat Holdings, Inc.), Revenue Loan and Security Agreement (Splash Beverage Group, Inc.), Revenue Loan and Security Agreement (NowRx, Inc.)
Collateral. Subject As security for the Obligations, the Debtor does hereby transfer, assign and convey to the terms Secured Party, and grant to the Secured Party a security interest in, all of the applicable Collateral Documentsits right, title and interest in, to secure and under the payment and performance of the Obligations hereunderfollowing property, pursuant to a Collateral Account Pledgewhether real, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the followingpersonal or mixed, whether now owned or hereafter acquired by the Debtor, and wherever located (hereinafter collectively called the "Collateral"):
(a) All Equipment, Inventory, materials, vehicles, supplies, fixtures, goods and other tangible personal property of the Debtor (hereinafter collectively called the "Tangible Collateral" except to the extent any lease or arising:agreement with respect thereto would be violated if they were covered by the terms of this Security Agreement or treated as Collateral under this Security Agreement);
(b) all existing and future leases and use agreements of personal property entered into by the Debtor as lessor with other Persons as lessees, including, without limitation, the right to receive and collect all rentals and other monies, including security deposits, at any time payable under such leases and agreements;
(c) any existing and future leases and use agreements of personal property entered into by the Debtor as lessee with other Persons as lessor, including, without limitation, the leasehold interest of the Debtor in such property, and all options to purchase such property or to extend any such lease or agreement, except any such leases or agreements which would be violated if they were covered by the terms of this Security Agreement or treated as Collateral for the purposes of this Security Agreement;
(d) any and all accessions and additions now or hereafter made or added to any of the property described in subparagraphs (a) through (c) above, any substitutions and replacements therefor, and all attachments and improvements now or hereafter placed upon or used in connection therewith, or any part thereof;
(e) all Accounts of the Debtor;
(f) all General Intangibles of the Debtor and any agreements constituting part of General Intangibles except such agreements which would be violated if they were covered by the terms of this Security Agreement or treated as Collateral for the purposes of this Security Agreement;
(g) all Deposit Accounts and all monies of the Debtor and all bank accounts in which such monies may at any time be held and all investments or securities in which such monies may at any time be invested and all certificates, instruments and documents from time to time representing or evidencing any such monies;
(h) all interest, dividends, proceeds, products, rents, royalties, issues and profits of any of the Collateral described in subparagraphs (a) through (g) above and all notes, certificates of deposit, checks and other instruments from time to time delivered to or otherwise possessed by the Secured Party for or on behalf of the Debtor in substitution for or in addition to any or all of said property;
(i) any all books, documents and all Unfunded Capital Commitments of the Investors, records (whether now on computer or hereafter committed, including but not limited otherwise) related to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
items described in subparagraphs (iva) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretothrough (h) above; and
(vj) any all products and all proceeds of any of the foregoing items described in subparagraphs (a) through (i) above. No submission by the Debtor to the Secured Party of a schedule or other particular identification of Collateral includingshall be necessary to vest in the Secured Party security title to and a security interest in each and every item of Collateral of the Debtor now existing or hereafter created and acquired, but rather such title and security interest shall vest in the Secured Party immediately upon the creation or acquisition of any item of Collateral hereafter created or acquired, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or necessity for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected further action by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets Debtor or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and by the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinParty.
Appears in 3 contracts
Sources: Security Agreement (Windswept Environmental Group Inc), Security Agreement (Windswept Environmental Group Inc), Security Agreement (Windswept Environmental Group Inc)
Collateral. Subject to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, As collateral security for the benefit of each prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the Secured PartiesObligations, the Company hereby pledges, grants, assigns, hypothecates and transfers to the Agent on behalf of the Purchasers as applicablehereinafter provided, a first priority, security interest and ▇▇▇▇ in and on its interests in Lien upon all of the followingCompany’s right, title and interest in, to and under all personal property and other assets of the Company, whether now owned or hereafter acquired by or arising:
(i) any and all Unfunded Capital Commitments arising in favor of the InvestorsCompany, whether now existing or hereafter committedcoming into existence, whether owned or consigned by or to the Company, or leased from or to the Company and regardless of wherever located, except for the Excluded Collateral (all being collectively referred to herein as “Collateral”) including:
a. the Company’s direct or indirect ownership interest in the respective shares of capital stock of the Issuers and all other shares of capital stock of whatever class of the Issuers, now or hereafter owned by the Company, together with in each case the certificates evidencing the same (collectively, the “Pledged Stock”);
b. all shares, securities, moneys or property representing a dividend on any of the Pledged Stock, or representing a distribution or return of capital upon or in respect of the Pledged Stock, or resulting from a split-up, revision, reclassification or other like change of the Pledged Stock or otherwise received in exchange therefor, and any subscription warrants, rights or options issued to the holders of, or otherwise in respect of, the Pledged Stock;
c. without affecting the obligations of the Company under any provision prohibiting such action hereunder or under the Purchase Agreement or the Notes, in the event of any consolidation or merger in which any Issuer is not the surviving corporation, all shares of each class of the capital stock of the successor corporation (unless such successor corporation is the Company itself) formed by or resulting from such consolidation or merger (the Pledged Stock, together with all other certificates, shares, securities, properties or moneys as may from time to time be pledged hereunder pursuant to clause (a) or (b) above and this clause (c) being herein collectively called the “Stock Collateral”);
d. all accounts and general intangibles (each as defined in the Uniform Commercial Code) of the Company constituting any right to the payment of money, including (but not limited to) all moneys due and to become due to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors Company in respect of any loans or advances for the purchase price of Inventory or Equipment or other goods sold or leased or for services rendered, all moneys due and to issue Investor Capital Calls with respect theretobecome due to the Company under any guarantee (including a letter of credit) of the purchase price of Inventory or Equipment sold by the Company and all tax refunds (such accounts, general intangibles and moneys due and to become due being herein called collectively “Accounts”);
e. all instruments, chattel paper or letters of credit (iieach as defined in the Uniform Commercial Code) to of the extent Company evidencing, representing, arising from or existing in respect of, relating to, securing or otherwise supporting the payment of, any of the Accounts, including (but not limited to) promissory notes, drafts, bills of exchange and trade acceptances (herein collectively called “Instruments”);
f. all inventory (as defined in the Uniform Commercial Code) of the Company and all goods obtained by the Company in exchange for such inventory (herein collectively called “Inventory”);
g. all Intellectual Property of the Company and all other accounts or general intangibles of the Company not constituting Intellectual Property or Accounts;
h. all equipment (as defined in the Uniform Commercial Code) of the Company (herein collectively called “Equipment”);
i. each contract and other agreement of the Company relating to the Unfunded Capital Commitments sale or other disposition of Inventory or Equipment;
j. all documents of title (as defined in the Uniform Commercial Code) or other receipts of the Investors constituting Collateral Company covering, evidencing or representing Inventory or Equipment (herein collectively called “Documents”);
k. all rights, claims and benefits of the Company against any Person arising out of, relating to or in clause (i) aboveconnection with Inventory or Equipment purchased by the Company, (x) including, without limitation, any such rights, claims or benefits against any Person storing or transporting such Inventory or Equipment;
l. all estates of the Constituent DocumentsCompany in land together with all improvements and other structures now or hereafter situated thereon, (y) the Subscription Agreements and Side Letterstogether with all rights, if anyprivileges, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including tenements, hereditaments, appurtenances, easements, including, but not limited to, in each case of clauses (x)rights and easements for access and egress and utility connections, (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors rights now or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretohereafter appurtenant thereto (“Real Estate”);
(iii) any and m. all agreements, instruments and other documents of every kind tangible or description to the extent evidencing or supporting obligations under any intangible property of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral AccountCompany, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all proceeds, products and accessions of the records of the Guarantor concerning and to any of the foregoing Collateral; excluding property of the Company described in clauses (Aa) through (l) above in this Section 3 (including, without limitation, any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) proceeds of insurance thereon), and, to the extent usedrelated to any property described in said clauses or such proceeds, pursuant to products and accessions, all books, correspondence, credit files, records, invoices and other papers, including without limitation all tapes, cards, computer runs and other papers and documents in the terms possession or under the control of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement Company or any other Loan Document (i) computer bureau or service company from time to time acting for the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinCompany.
Appears in 3 contracts
Sources: Subsidiary Security Agreement (Irvine Sensors Corp/De/), Securities Purchase Agreement (Internet Commerce Corp), Security Agreement (Irvine Sensors Corp/De/)
Collateral. Subject 4.1 In consideration of FSL granting or continuing to make available the Margin Facilities to the terms Customer, the Customer, as beneficial owner hereby charges, assigns and releases to FSL the following assets of the applicable Collateral Documents, Customer (as Collateral) as continuing security for the punctual payment to secure FSL on the payment respective due dates of all amounts outstanding under the Margin Facilities and all other moneys and sums due or owing from the Customer to FSL from time to time pursuant to this Agreement and for the performance of all the Obligations hereunder, obligations of the Customer to FSL from time to time pursuant to a Collateral Account Pledgethis Agreement:-
(a) all the Customer's rights, a Security Agreementtitle and interest in and to the Securities which shall at any time hereafter and from time to time be purchased or held by FSL or its nominee for or on account of the Customer pursuant to this Agreement and any Securities deposited with FSL whether pursuant to Clause 5.1 of this Section II or otherwise, together with all dividends or interest paid or payable after the related financing statements date hereof on or in respect of any of such Securities and the other related documents, the Guarantor shall grant, and shall pledge and/or assign all accretions thereto by way of securitybonus, distributions, options, rights or otherwise howsoever accruing or offered at any time hereafter (together the "Charged Securities"); and
(b) all and any funds standing to the Administrative Agent, credit of the Margin Account and all funds held by FSL for or on account of the Customer from time to time.
4.2 FSL is hereby irrevocably authorized to hold the Charged Securities in its own name or in the name of its nominee or be deposited in a safe custody in a designated account with its bankers or with any other institution which provides facilities for the benefit safe custody of each documents. In the case of Securities in Hong Kong, such institution shall be acceptable to the SFC as a provider of safe custody services and the Customer hereby irrevocably authorises FSL to do and execute any and all acts or things and documents necessary to transfer, complete and/or vest title to all of the Secured PartiesCharged Securities to it or its nominee and to do all such things and execute all such documents as it may reasonably require in order to perfect the security given hereunder.
4.3 The security given by the Customer hereunder shall be in addition to and may be enforced by FSL without prejudice to any other guarantee, as applicablepledge, lien, indemnity, assurance, mortgage, charge, debenture or collateral security or other power, right or remedy now or at any time hereafter held or available to FSL in respect of the Margin Facilities or the obligations of the Customer hereunder and shall be a first prioritycontinuing security notwithstanding the death, security bankruptcy, liquidation, winding-up, insolvency, incapacity or any change in the constitution of the Customer or any intermediate or partial payment or settlement of account or satisfaction of the whole or any part of the amounts outstanding under the Margin Facilities or any obligations of the Customer under this Agreement.
4.4 The Customer hereby irrevocably undertakes to FSL that all the Customer's rights, title and interest and ▇▇▇▇ in and to the Collateral will at all relevant times constitute the legal and unencumbered property of the Customer free from any trust, lien, charge, mortgage, pledge or other encumbrance (save as created or required hereunder). The Customer shall provide FSL with signed transfers or other instruments necessary for FSL to exercise its rights under this Agreement.
4.5 All dividends, interests, income, payments or other distributions received by FSL in respect of the Charged Securities will be credited to the Margin Account on its interests in receipt by FSL.
(a) The Customer hereby represents and warrants to FSL that during the following, whether now owned or hereafter acquired or arisingcontinuance of the Charge:
(i) any the Customer has and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited will maintain unencumbered and absolute title to the right Charged Securities (subject only to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretothe Charge);
(ii) the Charge constitutes and will continue to constitute the extent relating to the Unfunded Capital Commitments valid and legally binding obligations of the Investors constituting Collateral Customer enforceable in clause accordance with its terms.
(b) The Customer hereby undertakes and agrees that during the continuance of the Charge, the Customer shall:
(i) abovenot mortgage, charge, pledge or otherwise encumber or assign, transfer or otherwise deal with or grant or suffer to arise any third party rights over or against the whole or any part of the Collateral or purport so to do ranking in priority to or pari passu with the Charge, except in FSL's favour;
(xii) deposit with FSL or to its order, at such place as FSL may from time to time direct, all certificates, instruments and evidence of title to the Constituent DocumentsCharged Securities, (y) the Subscription Agreements and Side Letterstogether, if anywhere appropriate, with all such necessary forms of such Investors and (z) any and all guaranties transfer or other instructions, duly executed in favour of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toFSL, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights as FSL may from time to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretotime require;
(iii) at any time and all agreementsfrom time to time, instruments execute and deliver such further assignments, charges, authorities and other documents of every kind as FSL may from time to time require for perfecting its title to or description for vesting or enabling FSL to vest the extent evidencing or supporting obligations under any full benefit of the foregoing Collateral and any and all security in its favour, which assignments, charges, authorities and other property with respect to documents shall be prepared by FSL or on its behalf, at the cost of the Customer, and shall contain such Collateral;provisions for FSL's benefit as FSL may reasonably require, for which purposes the Customer hereby irrevocably appoints FSL as the Customer's lawful attorney; and
(iv) each Collateral Accountobtain and maintain in full force and effect all governmental and other approvals, including but not limited to any authorities, licenses and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received consents required in connection with the Swap Agreements, (iv) Charge and to do or cause to be done all other acts and things necessary or desirable for the Collateral may be subject performance of all the obligations of the Customer pursuant to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap this Agreement, as provided therein.
Appears in 3 contracts
Sources: Client Trading Agreement, Client Trading Agreement, Client Trading Agreement
Collateral. Subject to As collateral security for the terms payment in full when due (whether at stated maturity, by acceleration or otherwise) of the applicable Collateral DocumentsSecured Obligations, to secure the payment each Obligor hereby pledges and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, grants to the Administrative Agent, Agent for the ratable benefit of each of the Secured PartiesCreditors, as applicablehereinafter provided, a first priority, security interest in all of such Obligor’s right, title and ▇▇▇▇ interest in, to and under the following property, in each case whether tangible or intangible, wherever located, and on its interests in the following, whether now owned by such Obligor or hereafter acquired and whether now existing or arisinghereafter coming into existence:
(a) all Accounts, Chattel Paper, Collateral Accounts, Deposit Accounts, Documents, Equipment, General Intangibles, Instruments, Inventory, Investment Property, money; and
(b) the following (collectively, the “Security Collateral”):
(i) any the Initial Pledged Equity and the certificates, if any, representing the Initial Pledged Equity, and all Unfunded Capital Commitments dividends, distributions, return of capital, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the InvestorsInitial Pledged Equity, whether now all warrants, rights or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls options issued thereon or with respect theretothereto and all general intangibles (including membership status, control rights and economic interests) arising therefrom;
(ii) to the extent relating to Initial Pledged Debt and the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Lettersinstruments, if any, of such Investors and (z) any evidencing the Initial Pledged Debt, and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited tointerest, in each case of clauses (x)cash, (y) and (z), any and all representations, warranties, covenants instruments and other agreements property from time to time received, receivable or otherwise distributed in respect of such Investors or guarantors contained therein, in exchange for any and or all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoInitial Pledged Debt;
(iii) all additional shares of stock and other Equity Interests from time to time acquired by such Obligor in any manner (such shares and other Equity Interests, together with the Initial Pledged Equity, being the “Pledged Equity”), and the certificates, if any, representing such additional shares or other Equity Interest, and all agreementsdividends, distributions, return of capital, cash, instruments and other documents property from time to time received, receivable or otherwise distributed in respect of every kind or description to the extent evidencing in exchange for any or supporting obligations under any all of the foregoing Collateral and any such shares or other Equity Interests, all warrants, rights or options issued thereon or with respect thereto and all security general intangibles (including membership status, control rights and other property with respect to such Collateraleconomic interests) arising therefrom;
(iv) each Collateral Accountall additional indebtedness from time to time owed to such Obligor (such indebtedness, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance together with the terms hereof or for any other purpose permitted under Initial Pledged Debt, being the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A“Pledged Debt”) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insidersinstruments, if any, unless so elected by the Guarantor evidencing such indebtedness, and all interest, cash, instruments and other property from time to time received, receivable or otherwise distributed in its discretion, (ii) the term “Collateral” shall not include respect of or in exchange for any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and all of such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.indebtedness;
Appears in 2 contracts
Sources: 364 Day Revolving Credit Agreement (KKR & Co. Inc.), 364 Day Revolving Credit Agreement (KKR & Co. L.P.)
Collateral. Subject to the terms All of the applicable Collateral Documentsyour right, title and interest in, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of under each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the followingfollowing items of property, whether now owned or hereafter acquired acquired, now existing or arisinghereafter created and wherever located, are hereinafter referred to as the "COLLATERAL":
(i) any a. all Assets;
b. all Collateral Documents, including without limitation all promissory notes relating to or evidencing the Assets, and all Unfunded Capital Commitments of the InvestorsServicing Records, whether now servicing agreements and any other collateral pledged or hereafter committedotherwise relating to such Collateral, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors together with all files, documents, instruments, surveys, certificates, correspondence, appraisals, computer programs, computer storage media, accounting records and to issue Investor Capital Calls with respect other books and records relating thereto;
(ii) c. all securities, monies or property representing dividends or interest on any of the foregoing, or representing a distribution in respect of the foregoing, or resulting from a split-up, revision, reclassification or other like change of the foregoing or otherwise received in exchange therefor, and any subscription warrants, rights or options issued to the extent holders of, or otherwise in respect of, the foregoing.
d. all Pooling and Servicing Agreements;
e. all Collection Accounts and amounts on deposit therein;
f. all Cash Collateral Accounts and amounts on deposit therein;
g. all guaranties and insurance (issued by governmental agencies or otherwise) and any insurance certificate or other document evidencing such guaranties or insurance relating to the Unfunded Capital Commitments any item of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties claims and payments thereunder;
h. all other insurance policies and insurance proceeds relating to any item of such Investors’ obligations under the Constituent Documents and Subscription Agreements including Collateral;
i. all Interest Rate Protection Agreements;
j. all Additional Collateral provided to us as described herein;
k. all of your rights, but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting your obligations under any purchase agreements and servicing agreements covering or relating to any item of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of without limitation the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit FIRSTPLUS Purchase Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.FIRSTPLUS Servicing Agreement to which you are a party;
Appears in 2 contracts
Sources: Loan and Security Agreement (Firstplus Financial Group Inc), Loan and Security Agreement (Firstplus Financial Group Inc)
Collateral. Subject to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a the related Collateral Account PledgePledges, a Security AgreementAgreements, the related financing statements and the other related documents, the Guarantor (A) Primary Borrower shall grant, by way of pledge and shall pledge and/or assign assignment by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, and (B) each Pledgor and Pledgor General Partner, as applicable, shall grant, by way of pledge and assignment by way of security, to the Primary Borrower, in each case, a first priority, security interest and ▇▇▇▇ Lien in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto;
(v) all of the Primary Borrower’s rights, titles, interests, remedies and privileges related to, appurtenant to or arising out of the Pledgor Security Agreement, the Pledgor Collateral Account Pledge and the Pledgor Acknowledgment and Confirmation, each executed by a Pledgor for the benefit of, and pledged to, the Primary Borrower; and
(vvi) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor Primary Borrower, a Pledgor or General Partners (as the case may be) concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documentsapplicable Partnership Agreement, to purchase Portfolio Fund Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents Partnership Agreement and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX InsidersEmployee Investors, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX InsidersEmployee Investors, if any, unless so elected by the Guarantor Primary Borrower or Pledgor, as applicable, in its discretion, (ii) the term “Collateral” shall not include any Portfolio Fund Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor Pledgor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties Parties, or the Primary Borrower, as applicable, shall not have any Lien on any property that is not “Collateral”, ” except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Goldman Sachs Middle Market Lending Corp. II), Revolving Credit Agreement (Goldman Sachs Middle Market Lending Corp. II)
Collateral. Subject To secure the payment, promptly when due, and the punctual performance, of all of the Obligations, and satisfaction by Borrowers of all covenants and undertakings contained in the Credit Agreement and the Loan Documents, each Existing Borrower reconfirms the prior grant of the security interest in and lien upon and to, all of its right, tide and interest in and to the terms of the applicable Collateral Documents(including as set forth below), whether now owned or hereafter acquired, created or arising and wherever located and Joining Borrower hereby assigns and grants to secure the payment and performance of the Obligations hereunder, pursuant to Lender a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantsecurity interest in, and shall pledge and/or assign by way a right of securitysetoff against, to the Administrative Agentany and all right, for the benefit title and interest of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ such Borrower in and on its interests in to all of the following, whether now owned or hereafter existing or owned, acquired or arising:
arising hereafter: (i) any all accounts, Payment Intangibles, Instruments and all Unfunded Capital Commitments other rights to receive payments of Borrower (including without limitation the InvestorsAccounts), whether now existing or hereafter committedarising or acquired, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) all General Intangibles (including without limitation, contract rights and Intellectual Property), Chattel Paper, Documents, Supporting Obligations, Letter of Credit Rights, Commercial Tort Claims set forth on Schedule 2.13 to the extent Credit Agreement, remedies, guarantees and collateral evidencing, securing or otherwise relating to or associated with the Unfunded Capital Commitments of the Investors constituting Collateral property in clause subpart (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and without limitation all rights to compel performance of enforcement and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
collection, (iii) any and all agreementsCommercial Lockboxes, instruments all Government Lockboxes, all Collection Accounts and other documents deposit accounts into which any of every kind the Collections or description Advances are deposited, all funds received thereby or deposited therein, and any checks or instruments from time to time representing or evidencing the extent same, (iv) all books and records of Borrowers evidencing or supporting obligations under relating to or associated with any of the foregoing, (v) all infounation and data compiled or derived by Borrowers with respect to any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such accountinformation and data subject to legal restrictions of patient confidentiality), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) all collections, Accessions, receipts and Proceeds derived from any of the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 2 contracts
Sources: Credit Agreement (Clarient, Inc), Credit Agreement (Clarient, Inc)
Collateral. Subject to the terms of the applicable Collateral DocumentsThe Obligations, to secure the payment including, without limitation, Rate Management Obligations and performance of the Obligations hereunderBanking Services Obligations, pursuant to a Collateral Account Pledgeshall be secured by (a) valid, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantperfected, and shall pledge and/or assign by way of securityenforceable Liens on all right, to the Administrative Agenttitle, for the benefit and interest of each of the Secured PartiesCredit Parties and each Subsidiary (other than Addus FEA) in all capital stock and other Equity Interests held by such Person in each of its Subsidiaries, as applicablewhether now owned or hereafter formed or acquired, a first priorityand all Proceeds thereof, security and (b) valid, perfected, and enforceable Liens on all right, title, and interest of each of the Credit Parties and ▇▇▇▇ each Subsidiary (other than Addus FEA) in all personal property, fixtures, and on its interests in the followingreal estate, whether now owned or hereafter acquired or arising:
, and all Proceeds thereof. Furthermore, (i) any and all Unfunded Capital Commitments Holdings will cause 100% of the Investorsissued and outstanding Equity Interests of each direct and indirect Subsidiary of Holdings, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, Addus FEA, to be subject at all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited times to a Collateral Account) to the extent usedfirst priority, perfected Lien and pledge in favor of Agent pursuant to the terms and conditions of this Agreement, and the applicable Collateral Documents or other security documents as Agent shall reasonably request. Notwithstanding the foregoing, the Lien of Agent shall not extend to and Collateral (or any asset or property comprising the Collateral) shall not include the following Property (all of the Guarantor’s Governing Documents, to purchase Portfolio Investments following being the “Excluded Assets”): (i) other than Permitted Investments deposited Accounts, any lease, license, permit or agreement to which any Credit Party is a party to the extent, but only to the extent, that such a grant would, under the terms of such lease, license, permit or agreement, result in a breach of the terms of, invalidate, or credited constitute a default under, such lease, license, permit or agreement or to the extent any requirement of law prohibits the grant of a Lien thereon; (ii) any Property that is the subject of a Lien securing any purchase money Indebtedness or Capital Lease permitted under this Agreement pursuant to an agreement the terms of which prohibit such Credit Party from granting any other Liens on such Property (with respect to clauses (i) and (ii), other than to the extent that any such term or prohibition would be rendered ineffective pursuant to the UCC or other applicable law); provided, that with respect to any such account)limitation described in the foregoing clauses (i) or (ii) (A) upon the request of the Agent, such Credit Party shall in good faith use commercially reasonable efforts to obtain any requisite consent for the creation of such Lien in favor of the Agent on such Property, (B) immediately upon the ineffectiveness, lapse or termination of any such restriction, the Collateral shall include, and such Credit Party shall be deemed to have granted a Lien on such Property under the applicable Collateral Documents as if such restriction had never been in effect; and (C) notwithstanding any such restriction, the Collateral shall, to make payments the extent such restriction does not by its terms apply thereto and such rights and Proceeds do not otherwise constitute Excluded Assets, include all rights incident or distributions appurtenant to Investors any such Property, and the right to receive all Proceeds derived from, or in accordance connection with the terms hereof sale, assignment or transfer of, such Property; (iii) more than 65% of the total of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by any Credit Party or any Domestic Subsidiary or any assets of any Foreign Subsidiary of the Credit Parties if in any such case Agent’s Lien on such Property would create a significant risk of a material adverse tax consequence to the Credit Parties; (iv) any “intent to use” applications for any other purpose permitted under Trademarks for which a statement of use has not been filed and accepted with the GuarantorUnited States Patent and Trademark Office; or (v) those assets as to which Agent determines in its Permitted Discretion the cost of obtaining a Lien therein in favor of Agent or the perfection thereof are excessive in relation to the benefit to the Lenders afforded by such Lien. Furthermore, the Lien of Agent need not be perfected in the following Property: (a) in each case with Agent’s Governing Documents prior written consent, (i) deposit accounts for ▇▇▇▇▇ cash supporting local operations so long as the amounts on deposit in such deposit accounts do not exceed $10,000 in the aggregate for all such accounts, (ii) deposit account number xxxx7086 with Citibank so long as such deposit account (x) is used solely to disburse payment of workers compensation claims related to a Credit Party that have been funded by Agent and this Credit Agreement, (y) has a balance of no more than the sum of (A) 100% of the total workers compensation claims amount being paid and (B) $50,000 (representing the proceeds minimum balance required amount) (or such greater minimum balance required amount agreed to in writing by Agent in its sole discretion) and (iii) payroll accounts so long as such payroll accounts (x) are used solely to disburse payroll for Credit Party employees and (y) have a balance of such withdrawn funds (the items in no more than either (A) 110% of the total payroll amount being paid for such week prior to the disbursement of such weekly payroll or (B) $30,000 for each such account after the disbursement of such weekly payroll (collectively, the “Excluded Accounts”); and (B)b) until an Event of Default has occurred and is continuing and thereafter until otherwise required by the Agent or the Required Lenders, collectively on vehicles which are subject to a certificate of title law (collectively, the “Excluded ProceedsVehicles”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Addus HomeCare Corp), Credit and Guaranty Agreement (Addus HomeCare Corp)
Collateral. Subject In addition to, and not in substitution for, any Property delivered, conveyed, transferred or assigned to you under any Loan Document as security for any or all of Applicant’s obligations and liabilities to you at any time existing under or in connection with any L/C Document or any Loan Document, Applicant grants to you a security interest in and to the terms following Collateral, whether or not any such Collateral is in your possession or control or the possession or control of your agents or correspondents or in transit to, or set apart for, you or your agents or correspondents: (a) with respect to each Credit and until such time as all Applicant’s obligations and liabilities to you at any time existing under or in connection with each Credit and the L/C Documents and Loan Documents related to such Credit have been fully paid and discharged, all as security for such obligations and liabilities, (i) all Property referred to in, or at any time shipped under or pursuant to, or in any way related to, each Credit or to any Demand made or Acceptance created under each Credit, whether or not you receive the Documents covering such Property or release such Documents to Applicant on trust or bailee receipt or otherwise, (ii) all Documents accompanying any Demand made under each Credit, and (iii) all the proceeds of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements Property and the other related documents, the Guarantor shall grantDocuments referred to in subsections (i) and (ii) of this Section 10(a), and shall pledge and/or assign by way of security(b) with respect to all the Credits and until such time as all Applicant’s obligations and liabilities to you at any time existing under or in connection with each L/C Document and each Loan Document have been fully paid and discharged, all as security for such obligations and liabilities, (i) all Applicant’s property, claims, demands, right, title and interest in and to the Administrative Agent, for the benefit balance of each of the Secured PartiesApplicant’s deposit accounts with you now or at any time hereafter existing, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments evidences of the Investorssuch deposit accounts, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) all Property belonging to the extent relating Applicant or in which it may have an interest, now or at any time hereafter delivered, conveyed, transferred, assigned, pledged or paid to the Unfunded Capital Commitments of the Investors constituting Collateral you or your agents or correspondents in clause (i) aboveany manner whatsoever, (x) the Constituent Documentswhether as security or for safekeeping or otherwise, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (items received for collection or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreementtransmission, and (B) the proceeds of such withdrawn funds items, whether or not such Property is in whole or in part released to Applicant on trust or bailee receipt or otherwise, and (iii) where Applicant is more than one person or entity, all right, title and interest of each of Applicants in and to all the items Property which any of Applicants may now or hereafter obtain as security for the obligations of any one or more of Applicants to one or more of the others of Applicants arising under or in connection with the transaction to which any Credit relates. Further, in addition to, and not in substitution for, any Property delivered, conveyed, transferred or assigned to you under any Loan Document as security for any or all of Applicant’s obligations and liabilities to you at any time existing under or in connection with any L/C Document or any Loan Document, Applicant agrees to deliver, convey, transfer and assign to you on demand, as security, Property of a value and character satisfactory to you, (A) and if you at any time feel insecure about Applicant’s ability or willingness to repay any amounts which you have paid or may pay in the future on any Demand or Acceptance or in honoring any other of your obligations under or in connection with any Credit, or (B), collectively “Excluded Proceeds”). Notwithstanding ) without limiting the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments generality of the SOX Insidersforegoing, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitmentsif any temporary or permanent restraining order, preliminary or permanent injunction, or any other interests of the SOX Insiderspretrial or permanent injunctive or similar relief is obtained restraining, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investmentprohibiting or enjoining you, any Portfolio Assets of your correspondents, or any Excluded Proceedsadvising, (iii) the term “Collateral” shall not include confirming, negotiating, paying, accepting or other bank from paying or negotiating any collateral posted Demand or received creating or paying any Acceptance or honoring any other obligation under or in connection with any Credit. Applicant agrees that the Swap Agreementsreceipt by you or any of your agents or correspondents at any time of any kind of security, including, without limitation, cash, shall not be deemed a waiver of any of your rights or powers under this Agreement. Applicant agrees to sign and deliver to you on demand, all such deeds of trust, security agreements, financing statements and other documents as you shall at any time request which are necessary or desirable (ivin your sole opinion) to grant to you an effective and perfected security interest in and to any or all of the Collateral. Applicant agrees to pay all filing and recording fees related to the perfection of any security interest granted to you in accordance with this Section. Applicant hereby agrees that any or all of the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” held and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, disposed of as provided thereinin this Agreement by you. Upon any transfer, sale, delivery, surrender or endorsement of any Document or Property which is or was part of the Collateral, Applicant will indemnify and hold you and your agents and correspondents harmless from and against each and every claim, demand, action or suit which may arise against you or any of your agents or correspondents by reason of such transfer, sale, delivery, surrender or endorsement.
Appears in 2 contracts
Sources: Commercial Letter of Credit Agreement, Commercial Letter of Credit Agreement (Phoenix Footwear Group Inc)
Collateral. Subject to the terms of the applicable Collateral Documents, to To secure the full and complete payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementSecured Obligations, the related financing statements Borrower shall execute and deliver or cause to be executed and delivered the documents described below covering the property and collateral described in this Section 6.14 (which, together with any other related documentsproperty and collateral which may now or hereafter secure the Secured Obligations or any part thereof, is sometimes herein called the Guarantor shall grant“Collateral”):
(a) The Borrower will, and shall pledge and/or assign by way will cause each of securityits Material Domestic Subsidiaries to, grant to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, priority security interest (subject only to Permitted Liens) in all of its Accounts, chattel paper, instruments, documents, books, records, letter-of-credit rights, Inventory, machinery, equipment, Rolling Stock, financial assets, investment property, contract rights, deposit accounts, trademarks, patents, copyrights, other material intellectual property, payment intangibles, other general intangibles, commercial tort claims, 100% of Equity Interests in its Material Domestic Subsidiaries and ▇▇▇▇ 66% of Equity Interests in Foreign Subsidiaries owned directly by the Borrower or any Domestic Subsidiary, and on its interests in other personal property subject to the followingLien granted pursuant to the Security Agreement, whether now owned or hereafter acquired acquired, and all products and cash and non-cash proceeds thereof, pursuant to the Security Agreement, provided in all cases that, notwithstanding anything to the contrary herein or arising:
in the other Loan Documents, (i) any perfection and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not priority in such collateral shall be limited to the right extent that perfection may be obtained (A) by the filing of a centralized UCC-1 financing statement, (B) by patent, trademark or copyright office filings in the United States of America (provided, that following the Closing Date the Administrative Agent shall only perfect its security interest in after-acquired patents, trademarks and copyrights to draw down Investor Capital Contributions the extent such intellectual property is material to the business of any Loan Party as reasonably determined by such Loan Party), (C) by possession and indorsement of stock certificates, chattel paper and instruments, (D) automatically pursuant to the UCC, (E) by entering into deposit account or securities account control agreements, (F) by the filing of UCC-1 financing statements on such Unfunded Capital Commitments from such Investors Aggregates constituting as-extracted collateral in the applicable real property records, (G) by compliance with the procedures set forth in any applicable certificate of title statutes for perfecting a Lien on Rolling Stock, including the notation of the Administrative Agent’s Lien on the certificates of title therefor, but only to the extent authorized under Section 6.14(c), and to issue Investor Capital Calls (H) in the case of locomotives and railcars, by the filing of a mortgage or security agreement with respect thereto;
the Surface Transportation Board of the U.S. Department of Transportation, and (ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but security interest shall not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding cover (A) any funds properly withdrawn from fixtures or real property, (B) any assets subject to a Collateral Account Lien permitted by clause (f) of the definition of “Permitted Liens”, or that could be withdrawn pursuant (C) any assets with respect to which there are effective and enforceable legal restrictions against the granting of a security interest therein. Notwithstanding clause (i)(F) above to the Credit Agreement if deposited contrary, the Administrative Agent will not perfect its Lien on Aggregates constituting as-extracted collateral by the filing of financing statements in the applicable real property records until the first to occur of (1) an Event of Default, (2) Availability is less than $60,000,000, or credited (3) notice of a transaction described in clause (b) below (in which case the Administrative Agent shall only perfect its Lien on Aggregates constituting as-extracted collateral located at the relevant property).
(b) The Borrower shall, and shall cause each Subsidiary to, provide the Administrative Agent with not less than 30 days prior written notice of its intention to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments ▇▇▇▇▇ ▇ ▇▇▇▇ securing Debt (other than Permitted Investments deposited the Obligations) on the Mill Creek, Bridgeport, Midlothian, Hunter or Oro Grande plants or any other real estate at which Aggregates with a Value equal to or exceeding $5,000,000 are located, which notice shall include a legal description of such real estate and the name of the fee owner thereof. Neither the Borrower nor any Subsidiary shall ▇▇▇▇▇ ▇ ▇▇▇▇ described in the preceding sentence until after such time as the Administrative Agent has filed a UCC-1 financing statement in the applicable real property records perfecting its Lien in any Aggregates constituting as-extracted collateral that are mined or credited extracted from such real estate.
(c) Within 60 days following the Closing Date, the Borrower shall, and shall cause each Subsidiary to, (i) use commercially reasonable efforts to any such account)provide the Administrative Agent with each certificate of title evidencing Rolling Stock then constituting Collateral and a mortgage or security agreement describing all locomotives and railcars then constituting Collateral, in form and substance satisfactory to make payments or distributions to Investors in accordance the Administrative Agent, for filing with the terms hereof or for any other purpose permitted under Surface Transportation Board of the Guarantor’s Governing Documents and this Credit AgreementU.S. Department of Transportation, and (Bii) agree with the proceeds Administrative Agent as to which items of such withdrawn funds (Rolling Stock evidenced by a certificate of title shall have the items Administrative Agent’s Lien noted on the certificates of title therefor in (A) and (B)order to provide the Administrative Agent with perfected Liens on such Rolling Stock with significant NOLV while excluding such Rolling Stock with de minimis value. Following the receipt of such mortgage or security agreement, collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to Administrative Agent shall file the contrary in this Credit Agreement or any other Loan Document (i) same with the term “Collateral” shall not include the Unfunded Capital Commitments Surface Transportation Board of the SOX InsidersU.S. Department of Transportation, including but not limited to and following receipt of such certificates of title and the right to draw down Investor Capital Contributions on completion of such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection agreement with the Swap AgreementsBorrower as to which of such certificates shall have the Administrative Agent’s Lien noted thereon, (iv) the Collateral may be subject Administrative Agent shall arrange for such notations and otherwise perfect such Lien. As the Borrower and its Subsidiaries from time to Permitted Lienstime acquire additional locomotive and railcars, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition they shall give prompt notice thereof to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and shall provide to the Secured Parties shall not have any Lien on any property that is not “Collateral”, except Administrative Agent additional mortgages and security agreements (or amendments or supplements to previous mortgages and security agreements) describing such additional locomotives and railcars and in connection form and substance satisfactory to the Administrative Agent for filing with any Swap Agreement, as provided therein.the Surface Transportation Board of the U.S.
Appears in 2 contracts
Sources: Credit Agreement (Texas Industries Inc), Credit Agreement (Texas Industries Inc)
Collateral. Subject As collateral security for the payment in full when due (whether at stated maturity, by acceleration or otherwise) of its Secured Obligations, each Obligor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, Agent for the benefit of each the Secured Parties as hereinafter provided a security interest in all of such Obligor’s right, title and interest in, to and under all of the Secured Partiesfollowing property and assets, as applicablein each case whether tangible or intangible, a first prioritywherever located, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned by such Obligor or hereafter acquired and whether now existing or arising:hereafter coming into existence (all of the property described in this Section 4 being collectively referred to herein as “Collateral”):
(ia) any all Accounts, all Chattel Paper, all Deposit Accounts, all Documents, all General Intangibles (including all Intellectual Property), all Instruments (including all Promissory Notes), all Portfolio Investments, all Pledged Debt, all Pledged Equity Interests, all Investment Property not covered by the foregoing (including all Securities, all Securities Accounts and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls Security Entitlements with respect theretothereto and Financial Assets carried therein, and all Commodity Accounts and Commodity Contracts), all letters of credit and Letter-of-Credit Rights, all Money and all Goods (including Inventory and Equipment), and all Commercial Tort Claims;
(iib) to the extent relating related to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveany Collateral, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoSupporting Obligations;
(iiic) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under related to any of the foregoing Collateral and any and Collateral, all security books, correspondence, credit files, records, invoices and other property with respect papers (including all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Obligor or any computer bureau or service company from time to time acting for such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretoObligor); and
(vd) any and all proceeds Proceeds of any of the foregoing Collateral includingCollateral. IT BEING UNDERSTOOD, without limitationHOWEVER, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding that (A) in no event shall the security interest granted under this Section 4 attach to (1) any funds properly withdrawn from contract, property rights, obligation, instrument or agreement to which an Obligor is a Collateral Account party (or that could be withdrawn pursuant to any of its rights or interests thereunder) if the Credit Agreement if deposited grant of such security interest would constitute or credited to result in either (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Obligor therein or (ii) a Collateral Account) to the extent used, breach or termination pursuant to the terms of the Guarantor’s Governing Documentsof, to purchase Portfolio Investments or a default under, any such contract, property rights, obligation, instrument or agreement (other than Permitted Investments deposited in or credited to the extent that any such accountterms would be rendered ineffective by Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code as in effect in the relevant jurisdiction), to make payments or distributions to Investors in accordance with the terms hereof or for (2) any other purpose permitted under the Guarantor’s Governing Documents and this Credit AgreementExcluded Assets, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or notwithstanding anything to the contrary provided in this Credit Agreement or any other Loan Document (i) Agreement, the term “Collateral” shall not include include, and the Unfunded Capital Commitments of the SOX InsidersObligors shall not be deemed to have granted a security interest in, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, Excluded Assets and (iiB) the term “Collateral” shall not include any Portfolio InvestmentObligors, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition by notice to the Collateral Accounts Agent, exclude from the grant of a security interest provided above in this Section 4, any Special Equity Interest designated by the Borrower in reasonable detail to the Collateral Agent in such notice (it being understood that will not be considered “Collateral” and the Borrower may at any later time rescind any such other accounts shall not be subject designation by similar notice to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinCollateral Agent).
Appears in 2 contracts
Sources: Guarantee, Pledge and Security Agreement (Capitala Finance Corp.), Guarantee, Pledge and Security Agreement (Capitala Finance Corp.)
Collateral. Subject to the terms of the applicable Collateral Documents, to (a) To secure the full and complete payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements and the other related documents, the Guarantor shall grantBorrower shall, and shall pledge and/or assign by way cause each of securityits Subsidiaries, other than the Foreign Subsidiaries, to, on or before the Closing Date, grant to the Administrative Agent, Agent for the benefit of each the Administrative Agent and the Lenders a perfected, first priority Lien on all of the Secured Partiesits right, as applicable, a first priority, security title and interest and ▇▇▇▇ in and on its interests in to the followingfollowing Property, whether now owned or hereafter acquired or arisingacquired, and the proceeds and products thereof, pursuant to the Security Documents:
(i) any and all Unfunded Capital Commitments capital stock of each of the Investors, whether now Subsidiaries of the Borrower owned as of the Closing Date or hereafter committed, including but not limited to thereafter acquired by the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoBorrower or any Subsidiary of the Borrower;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements each Lockbox and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder Agency Account and any and all rights to compel performance and enforce the provisions thereof against such Investors cash or guarantors and otherwise pursue remedies against such Investors other moneys credited thereto or guarantors with respect theretoretained therein;
(iii) all capital stock of ICII or any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any Person owned as of the foregoing Collateral and Closing Date or thereafter acquired by the Borrower or any and all security and other property with respect to such Collateral;Subsidiary of the Borrower; and
(iv) each all LHO Loans outstanding as of the Closing Date or thereafter at any time existing, together with all LHO Loan Collateral Account, including but not limited therefor. The Borrower covenants that none of the capital stock to be pledged in accordance with this Section 7.1 shall be subject to any transfer restrictions, ----------- shareholders' agreement or other restriction except for such restrictions under Applicable Laws and all funds such restrictions, if any, as may be reasonably acceptable to the Administrative Agent. In connection with and financial assets on deposit therein or credited thereto; and
in addition to the foregoing, the Borrower and its Subsidiaries shall execute and/or deliver such Security Documents and further agreements, documents and instruments (v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of LHO Loan notes, stock certificates, stock powers, endorsements, collateral assignments, and financing statements) as the Guarantor concerning any of Administrative Agent may reasonably request in order for it to obtain and maintain the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could perfected, first priority Liens to be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors granted in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)Section 7.1. Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.-----------
Appears in 2 contracts
Sources: Credit Agreement (Imperial Financial Group Inc), Credit Agreement (Imperial Financial Group Inc)
Collateral. Subject Notwithstanding anything herein to the contrary, in no event shall the security interest granted under Section 3.01 or 4.01 hereof attach to the following (collectively, the “Excluded Assets”) (a) any lease, license, General Intangible, contract or agreement to which any Grantor is a party or any of its rights or interests thereunder to the extent that (and for as long as) (i) such lease, license, General Intangible, contract or agreement, or assets subject thereto, are not assignable or capable of being encumbered as a matter of law or under the terms of the lease, license, franchise, charter, authorization, General Intangible, contract or agreement applicable Collateral Documentsthereto (but solely to the extent that any such restriction shall be enforceable under applicable law, to secure the payment and performance including Sections 9-406, 9-407, 9-408 or 9-409 of the Obligations New York UCC, in respect of the grant of a security interest hereunder), without the consent of the licensor or lessor thereof, or Governmental Authority, or other applicable party thereto and (ii) such consent has not been obtained; (b) any intent-to-use application for a Trademark to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use application for a Trademark under federal law, (c) any vehicle or other assets owned by any Grantor that is subject to a certificate of title, (d) in the case of voting Equity Interests of a Foreign Subsidiary of the Borrower or any Domestic Subsidiary of the Borrower which is treated as a Foreign Subsidiary of the Borrower for United States federal income purposes, more than 66% of such voting Equity Interests, (e) any Equity Interests in joint ventures or any non-wholly owned Subsidiaries, but only to the extent that any applicable organizational documents, joint venture agreements, shareholder agreements or other agreements with other equity holders do not permit or otherwise restrict the pledge of such Equity Interest, (f) assets that are subject to or secured by Liens (i) permitted by Section 6.02(d), (g) or (m) of the Credit Agreement, (ii) permitted by Section 6.02(s) of the Credit Agreement securing Indebtedness described in Section 6.01(m)(i) of the Credit Agreement (but only to the extent that (x) the documentation pursuant to which such Liens were granted prohibits the granting of a Lien hereunder, (y) such documentation and Liens were in effect prior to such acquisition and (z) such Liens were not incurred, and such documentation was not entered into, by a Grantor in anticipation of such acquisition) of the Credit Agreement, or (iii) securing a purchase money obligation or Capital Lease Obligations permitted to be incurred pursuant to a Collateral Account Pledge, a Security the provisions of the Credit Agreement, in each case to the related financing statements extent the documentation relating to such Lien prohibits, or requires any consent for, any other Lien on such asset, (g) any governmental licenses or state or local franchises, charters and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of securityauthorizations, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, extent security interest and ▇▇▇▇ in and on its interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby, (h) any Letter-Of- Credit Rights to the followingextent perfection of a Lien in such Letter-Of-Credit Rights cannot be obtained by filing financing statements, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls Commercial Tort Claims with respect thereto;
(ii) to the extent relating which notice is not required to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations be delivered under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (xSection 4.04(f), (yj) any fee owned real property with a fair market value of less than $5,000,000 on the date of acquisition (or on the date of substantial completion of any material improvement thereon or new construction thereof) and all real property leasehold interests, (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iiik) any and all agreementsEquity Interest in any Immaterial Subsidiary, instruments and other documents of every kind Unrestricted Subsidiary, Not For Profit Subsidiary or description to the extent evidencing special purpose securitization Subsidiary or supporting obligations under Margin Stock, (l) any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
which the Collateral Agent and the Borrowers reasonably agree in writing that the costs or other consequences of granting or perfecting a security interest therein is excessive in view of the benefits to be obtained by the Secured Parties therefrom and (iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(vm) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) property to the extent used, pursuant a security interest in such assets could reasonably be expected to result in adverse tax consequences to Holdings and its Restricted Subsidiaries as determined in good faith by the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited Borrowers. With respect to any provision or restriction affecting the Collateral the reason for which such account)Collateral constitutes an Excluded Asset, immediately upon the ineffectiveness, lapse or termination of such provision or restriction with respect to make payments or distributions to Investors in accordance with such Excluded Asset, the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit AgreementCollateral shall include, and (B) such Grantor shall be deemed to have granted a security interest in, the proceeds of rights and interests in such withdrawn funds (Collateral as if such provision or restriction had never been in effect and if and when such property shall cease to be an Excluded Asset, such property shall be deemed at all times from and after the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything date thereof to the contrary in this Credit Agreement or any other Loan Document (i) the term “constitute Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Term Facility Guarantee and Collateral Agreement, Term Facility Guarantee and Collateral Agreement (Houghton Mifflin Harcourt Co)
Collateral. Subject For the purposes of this Agreement, all of the following property now owned by Grantor or in which Grantor now has any right, title or interests is collectively referred to as the "Collateral":
(a) all Pledged Collateral;
(b) all Deposit Accounts;
(c) all books and records pertaining to the terms property described in clauses (a) and (b) of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, this Section 2.1; and
(d) to the Administrative Agentextent not otherwise included, for the benefit all Proceeds and products of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any foregoing and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited accessions to, in each case of clauses (x)substitutions and replacements for, (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral includinginsurance, without limitationindemnity, all of the records of the Guarantor concerning warranty or guaranty payable to Grantor from time to time with respect to any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant foregoing. Notwithstanding anything to the Credit Agreement if deposited or credited to a Collateral Accountcontrary contained above: (1) to the extent usedthe security interest created by this Agreement is securing indebtedness for borrowed money or guarantees of indebtedness for borrowed money (collectively "Funded Debt"), pursuant such security interest shall not extend to, and the term "Collateral" shall not include, any Restricted Property (except to the terms extent the aggregate Funded Debt secured by Restricted Property hereunder does not exceed at any time outstanding 10% of Consolidated Net Tangible Assets); (2) so long as Grantor is bound by Section 5.5 of the Guarantor’s Governing DocumentsParticipation Agreement, the maximum principal amount of Debt Obligations secured hereunder shall not exceed at any time outstanding the sum of (x) $800,000,000 plus (y) the amount of Debt Obligations to purchase Portfolio Investments the extent secured by Designated Joint Ventures; (other than Permitted Investments deposited in 3) any Pledged Collateral if the grant of a security interest therein would constitute a violation or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for breach of any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, agreement by which Grantor is bound; and (B4) any Deposit Accounts for which the proceeds relevant depository bank's jurisdiction is not in the United States and acceptable arrangements cannot be made in the United States. The parties hereto agree that the amount of such withdrawn funds Debt Obligations that may be secured under this Agreement is limited under clauses (the items in (A1) and (B)2) above, collectively “Excluded Proceeds”). Notwithstanding as required under the foregoing Indenture and the Participation Agreement, to only a portion of the aggregate Debt Obligations owing or anything which may become owing by Grantor to Lender and that any payments or repayments of such Debt Obligations shall be and be deemed to be applied first to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments portion of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property Debt Obligations that is not “Collateral”secured hereby, except in connection with any Swap Agreement, as provided thereinit being the parties' intent that the portion of such Debt Obligations last remaining unpaid shall be secured hereby.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Union Carbide Corp /New/), Revolving Credit Agreement (Union Carbide Corp /New/)
Collateral. Subject (a) Unless an Event of Default shall have occurred and be continuing and the Administrative Agent shall have given notice to the terms Grantor of the applicable Collateral Documents, Administrative Agent's intent to secure the payment and performance of the Obligations hereunder, exercise its corresponding rights pursuant to a Collateral Account Pledge, a Security AgreementSection 5.1(b), the related financing statements Grantor shall be permitted to receive and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of securityuse all Proceeds, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests extent permitted in the followingCredit Agreement, whether now owned and to exercise all voting and corporate or hereafter acquired or arising:other organizational rights with respect to the Collateral.
(b) If an Event of Default shall occur and be continuing and the Administrative Agent shall have given notice to the Grantor of its intent to exercise such rights, (i) the Administrative Agent shall have the right to receive any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited Proceeds and make application thereof to the right to draw down Investor Capital Contributions on Credit Agreement Obligations in such Unfunded Capital Commitments from such Investors order as the Administrative Agent may determine, and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments any or all of the Investors constituting Collateral shall be registered in clause (i) abovethe name of the Administrative Agent or its nominee, and the Administrative Agent or its nominee may thereafter exercise (x) all voting, corporate and other rights pertaining to such Collateral at any meeting of shareholders of the Constituent Documents, Issuer or otherwise and (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z)subject to Section 5.6, any and all representationsrights of conversion, warranties, covenants exchange and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder subscription and any and all rights to compel performance and enforce the provisions thereof against such Investors other rights, privileges or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect options pertaining to such Collateral;
Collateral as if it were the absolute owner thereof (iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, the right to exchange at its discretion any and all of the records Collateral upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate or other organizational structure of the Guarantor concerning Issuer, or upon the exercise by the Grantor or the Administrative Agent of any right, privilege or option pertaining to such Collateral, and in connection therewith, the right to deposit and deliver any and all of the foregoing Collateral; excluding (A) Collateral with any funds properly withdrawn from a Collateral Account (committee, depositary, transfer agent, registrar or that could be withdrawn pursuant other designated agency upon such terms and conditions as the Administrative Agent may determine), all without liability except to account for property actually received by it, but the Administrative Agent shall have no duty to the Credit Agreement if deposited or credited Grantor to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to exercise any such account)right, privilege or option and shall not be responsible for any failure to make payments do so or distributions delay in so doing.
(c) The Grantor hereby authorizes and instructs the Issuer to Investors (i) comply with any instruction received by it from the Administrative Agent in writing that (x) states that an Event of Default has occurred and is continuing and (y) is otherwise in accordance with the terms hereof or for of this Agreement, without any other purpose permitted under or further instructions from the Guarantor’s Governing Documents and this Credit AgreementGrantor, and (Bii) the proceeds following receipt of such withdrawn funds (the items in (A) and (B)instruction, collectively “Excluded Proceeds”). Notwithstanding the foregoing pay any dividends or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection payments with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition respect to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject directly to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinAgent.
Appears in 2 contracts
Sources: Pledge Agreement (Centerpoint Energy Inc), Pledge Agreement (Centerpoint Energy Inc)
Collateral. Subject to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, As collateral security for the benefit of each prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the Secured PartiesObligations, the Company hereby pledges, grants, assigns, hypothecates and transfers to the Agent on behalf of the Purchasers as applicablehereinafter provided, a first priority, security interest and ▇▇▇▇ in and on its interests in Lien upon all of the followingCompany’s right, title and interest in, to and under all personal property and other assets of the Company, whether now owned or hereafter acquired by or arising:
(i) any and all Unfunded Capital Commitments arising in favor of the InvestorsCompany, whether now existing or hereafter committedcoming into existence, whether owned or consigned by or to the Company, or leased from or to the Company and regardless of wherever located, except for the Excluded Collateral (all being collectively referred to herein as “Collateral”) including:
a. the Company’s direct or indirect ownership interest in the respective shares of capital stock of the Issuers and all other shares of capital stock of whatever class of the Issuers, now or hereafter owned by the Company, together with in each case the certificates evidencing the same (collectively, the “Pledged Stock”);
b. all shares, securities, moneys or property representing a dividend on any of the Pledged Stock, or representing a distribution or return of capital upon or in respect of the Pledged Stock, or resulting from a split-up, revision, reclassification or other like change of the Pledged Stock or otherwise received in exchange therefor, and any subscription warrants, rights or options issued to the holders of, or otherwise in respect of, the Pledged Stock;
c. without affecting the obligations of the Company under any provision prohibiting such action hereunder or under the Purchase Agreement or the Notes, in the event of any consolidation or merger in which any Issuer is not the surviving corporation, all shares of each class of the capital stock of the successor corporation (unless such successor corporation is the Company itself) formed by or resulting from such consolidation or merger (the Pledged Stock, together with all other certificates, shares, securities, properties or moneys as may from time to time be pledged hereunder pursuant to clause (a) or (b) above and this clause (c) being herein collectively called the “Stock Collateral”);
d. all accounts and general intangibles (each as defined in the Uniform Commercial Code) of the Company constituting any right to the payment of money, including (but not limited to) all moneys due and to become due to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors Company in respect of any loans or advances for the purchase price of Inventory or Equipment or other goods sold or leased or for services rendered, all moneys due and to issue Investor Capital Calls with respect theretobecome due to the Company under any guarantee (including a letter of credit) of the purchase price of Inventory or Equipment sold by the Company and all tax refunds (such accounts, general intangibles and moneys due and to become due being herein called collectively “Accounts”);
e. all instruments, chattel paper or letters of credit (iieach as defined in the Uniform Commercial Code) to of the extent Company evidencing, representing, arising from or existing in respect of, relating to, securing or otherwise supporting the payment of, any of the Accounts, including (but not limited to) promissory notes, drafts, bills of exchange and trade acceptances (herein collectively called “Instruments”);
f. all inventory (as defined in the Uniform Commercial Code) of the Company and all goods obtained by the Company in exchange for such inventory (herein collectively called “Inventory”);
g. all Intellectual Property of the Company and all other accounts or general intangibles of the Company not constituting Intellectual Property or Accounts;
h. all equipment (as defined in the Uniform Commercial Code) of the Company (herein collectively called “Equipment”);
i. each contract and other agreement of the Company relating to the Unfunded Capital Commitments sale or other disposition of Inventory or Equipment;
j. all documents of title (as defined in the Uniform Commercial Code) or other receipts of the Investors constituting Collateral Company covering, evidencing or representing Inventory or Equipment (herein collectively called “Documents”);
k. all rights, claims and benefits of the Company against any Person arising out of, relating to or in clause (i) aboveconnection with Inventory or Equipment purchased by the Company, (x) including, without limitation, any such rights, claims or benefits against any Person storing or transporting such Inventory or Equipment;
l. all estates of the Constituent DocumentsCompany in land together with all improvements and other structures now or hereafter situated thereon, (y) the Subscription Agreements and Side Letterstogether with all rights, if anyprivileges, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including tenements, hereditaments, appurtenances, easements, including, but not limited to, rights and easements for access and egress and utility connections, and other rights now or hereafter appurtenant thereto (“Real Estate”);
m. in each case addition to, and without in any way limiting any of clauses (x), (y) and (z)the foregoing, any and all representationsaccounts, warrantieschattel paper, covenants commercial tort claims, deposit accounts, documents, equipment, financial assets, fixtures, general intangibles, goods, instruments, inventory, investment property, letter-of-credit rights, letters-of-credit and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any money of the foregoing Collateral and any and Company (as all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretoterms are defined in the Uniform Commercial Code); and
(v) any and n. all proceeds of any other tangible or intangible property of the foregoing Collateral Company, including, without limitation, all proceeds, products and accessions of the records of the Guarantor concerning and to any of the foregoing Collateral; excluding property of the Company described in clauses (Aa) through (m) above in this Section 3 (including, without limitation, any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) proceeds of insurance thereon), and, to the extent usedrelated to any property described in said clauses or such proceeds, pursuant to products and accessions, all books, correspondence, credit files, records, invoices and other papers, including without limitation all tapes, cards, computer runs and other papers and documents in the terms possession or under the control of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement Company or any other Loan Document (i) computer bureau or service company from time to time acting for the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinCompany.
Appears in 2 contracts
Sources: Security Agreement (Internet Commerce Corp), Subsidiary Security Agreement (Internet Commerce Corp)
Collateral. Subject to the terms of the applicable Collateral DocumentsThe Obligations, to secure the payment including, without limitation, Rate Management Obligations and performance of the Obligations hereunderBanking Services Obligations, pursuant to a Collateral Account Pledgeshall be secured by (a) valid, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantperfected, and shall pledge and/or assign by way of securityenforceable Liens on all right, to the Administrative Agenttitle, for the benefit and interest of each of the Secured PartiesCredit Parties and each Subsidiary in all capital stock and other Equity Interests held by such Person in each of its Subsidiaries, as applicablewhether now owned or hereafter formed or acquired, a and all Proceeds thereof, and (b) valid, perfected, first prioritypriority and enforceable Liens on all right, security title, and interest of each of the Credit Parties and ▇▇▇▇ each Subsidiary in all personal property, fixtures, and on its interests in the followingreal estate, whether now owned or hereafter acquired or arising:
(i) any , and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toProceeds thereof, in each case subject to Permitted Liens. Holdings will cause 100% of clauses the issued and outstanding Equity Interests of each of direct and indirect Subsidiary of Holdings to be subject at all times to a first priority, perfected Lien and pledge in favor of Agent pursuant to the terms and conditions of this Agreement, and the applicable Collateral Documents or other security documents as Agent shall reasonably request. Notwithstanding the foregoing, the Lien of Agent shall not extend to and Collateral (x), or any asset or property comprising the Collateral) shall not include the following Property (yall of the following being the “Excluded Assets”): (i) and (z)other than Accounts, any and all representationslease, warrantieslicense, covenants and other agreements permit or agreement to which any Credit Party is a party to the extent, but only to the extent, that such a grant would, under the terms of such Investors lease, license, permit or guarantors contained thereinagreement, result in a breach of the terms of, invalidate, or constitute a default under, such lease, license, permit or agreement or to the extent any requirement of law prohibits the grant of a Lien thereon; (ii) any “intent to use” applications for Trademarks for which a statement of use has not been filed and all duties accepted with the United States Patent and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
Trademark Office; (iii) any and all agreements, instruments and other documents those assets as to which Agent determines in its Permitted Discretion the cost of every kind obtaining a Lien therein in favor of Agent or description the perfection thereof are excessive in relation to the extent evidencing or supporting obligations under any of benefit to the foregoing Collateral and any and all security and other property with respect to Lenders afforded by such Collateral;
Lien, (iv) each Collateral Accountequipment owned by a Credit Party that is subject to a purchase money lien or Capitalized Lease permitted hereunder, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any other Intellectual Property if, after giving effect to Sections 9-406, 9-407, 9-408 or 9-409 of the foregoing Collateral includingUCC, without limitationthe grant of a Lien or a security interest in such Intellectual Property would result in the cancellation or voiding of such Intellectual Property. Furthermore, all the Lien of Agent need not be perfected, until otherwise required by the records of Agent or the Guarantor concerning any of the foregoing Collateral; excluding Required Lenders, (Aa) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited on vehicles which are subject to a Collateral Account) to certificate of title law (collectively, the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account“Excluded Vehicles”), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (Bb) deposit accounts which have been established and are used in the proceeds ordinary course for the sole purpose of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) ▇▇▇▇▇ cash supporting local operations so long as the term “Collateral” shall amounts on deposit in such deposit accounts do not include at any time exceed $5,000 in the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on aggregate for all such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretionaccounts, (ii) making payroll and withholding tax payments related thereto and other employee wage and benefit payments to or for the term “Collateral” shall not include any Portfolio Investmentbenefit of employees and unpaid employee compensation (including salaries, any Portfolio Assets or any Excluded Proceedswages, (iii) benefits, health savings and expense reimbursements), but only to the term “Collateral” shall not include any collateral posted or received extent that the aggregate amount on deposit in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank all such deposit accounts or securities accounts in addition to does not exceed 110% of the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions payment obligations described herein for the current pay period), and (viiii) escrow, trust and fiduciary accounts (collectively, the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “CollateralExcluded Accounts”, except in connection with any Swap Agreement, as provided therein) .
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (McBc Holdings, Inc.), Credit and Guaranty Agreement (McBc Holdings, Inc.)
Collateral. Subject to the terms The Collateral shall consist of all right, title and interest of the applicable Collateral Documents, Company of every kind and nature in and to secure the payment and performance all of the Obligations hereunderfollowing property, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements assets and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each rights of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the followingCompany wherever located, whether now existing or hereafter arising, and whether now or hereafter owned or hereafter acquired by or arising:accruing or owing to the Company, and all proceeds and products thereof (including all proceeds in the Settlement Account and Cash and Collateral Account and Custodian Settlement Accounts from time to time):
(a) all Pledged Mortgages;
(b) all Pledged Securities;
(c) any commitments or other agreements issued by any private mortgage insurer or by the FHA or VA to insure or guarantee any Pledged Mortgage;
(d) all commitments of FNMA, FHLMC or other Persons to purchase Pledged Items from the Company or exchange Securities with the Company for Pledged Items;
(e) any options to sell or purchase Securities, future contracts, or any other interest rate protection products which directly or indirectly protect the Company against reductions in value of such Pledged Items due to changes in mortgage interest rates;
(f) the Settlement Account and Cash and Collateral Account, the Funding Account and any Custodian Settlement Accounts and any amounts standing to the credit of the Settlement Account and Cash and Collateral Account and any Custodian Settlement Accounts then in existence with Approved MBS Custodians, as described in Paragraph 7(c) below;
(g) all cash and Cash Equivalents held by the Credit Agent or Collateral Agent as security for the Secured Obligations;
(h) all Pledged Servicing;
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoPledged Servicing Sale Receivables;
(iij) all property related to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveforegoing, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, the right to service Pledged Mortgages while owned by the Company, all accounts and general intangibles of whatsoever kind so related and all documents or instruments delivered to the Credit Agent or the Collateral Agent in respect of any Pledged Item, including, without limitation, the right to receive all insurance proceeds and condemnation awards which may be payable in respect of the records premises encumbered by any Pledged Mortgage; and
(k) all proceeds and products of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 2 contracts
Sources: Security and Collateral Agency Agreement (Pulte Homes Inc/Mi/), Security and Collateral Agency Agreement (Pulte Homes Inc/Mi/)
Collateral. The Collateral consists of the following:
2.1 Sixty-five percent (65%) in the aggregate of the shares of common stock of the Company, all such stock owned beneficially and of record by Pledgor and listed on Schedule I attached hereto and made a part hereof, and all cash, dividends, other securities, instruments, rights and other property at any time and from time to time received or receivable in respect thereof or in exchange for all or any part thereof, including without limitation, stock dividends, warrants, rights to subscribe, conversion rights, liquidating dividends and other stock rights, and in the event Pledgor receives any of the foregoing, Pledgor acknowledges that the same shall be received IN TRUST for Pledgee and agrees immediately to deliver the same to Pledgee in original form of receipt, together with any stock or bond powers, assignments, endorsements or other documents or instruments as Pledgee may reasonably request to establish, protect or perfect Pledgee's interest in respect of such Collateral; and
2.2 Subject to the terms of the applicable Collateral DocumentsSection 7.1.2 hereof, all other property hereafter delivered to secure the payment and performance Pledgee (or any agent or bailee holding on behalf of the Obligations hereunder, pursuant Pledgee) by Pledgor in substitution for or in addition to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral foregoing, all certificates and any instruments representing or evidencing such other property and all security cash, dividends, other securities, instruments, rights and other property at any time and from time to time received or receivable in respect thereof or in exchange for all or any part thereof, including without limitation, stock dividends, warrants, rights to subscribe, conversion rights, liquidating dividends and other stock rights, and in the event Pledgor receives any of the foregoing, Pledgor acknowledges that the same shall be received IN TRUST for Pledgee and agrees immediately to deliver the same to Pledgee in original form of receipt, together with any stock or bond powers, assignments, endorsements or other documents or instruments as Pledgee may request to establish, protect or perfect Pledgee's interest in respect to of such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all 2.3 All proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 2 contracts
Sources: Pledge Agreement (3-D Geophysical Inc), Pledge Agreement (3-D Geophysical Inc)
Collateral. Subject As collateral security for the payment in full when due (whether at stated maturity, by acceleration or otherwise) of its Secured Obligations, each Obligor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, Agent for the benefit of each the Secured Parties as hereinafter provided a security interest in all of such Obligor’s right, title and interest in, to and under all of the Secured Partiesfollowing property and assets, as applicablein each case whether tangible or intangible, a first prioritywherever located, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned by such Obligor or hereafter acquired and whether now existing or arising:hereafter coming into existence (all of the property described in this Section 4 being collectively referred to herein as “Collateral”):
(ia) any all Accounts, all Chattel Paper, all Deposit Accounts, all Documents, all General Intangibles (including all Intellectual Property), all Instruments (including all Promissory Notes), all Portfolio Investments, all Pledged Debt, all Pledged Equity Interests, all Investment Property not covered by the foregoing (including all Securities, all Securities Accounts and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls Security Entitlements with respect theretothereto and Financial Assets carried therein, and all Commodity Accounts and Commodity Contracts), all letters of credit and Letter-of-Credit Rights, all Money and all Goods (including Inventory and Equipment), and all Commercial Tort Claims;
(iib) to the extent relating related to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveany Collateral, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoSupporting Obligations;
(iiic) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under related to any of the foregoing Collateral and any and Collateral, all security books, correspondence, credit files, records, invoices and other property with respect papers (including all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Obligor or any computer bureau or service company from time to time acting for such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretoObligor); and
(vd) any and all proceeds Proceeds of any of the foregoing Collateral includingCollateral. IT BEING UNDERSTOOD, without limitationHOWEVER, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding that (A) in no event shall the security interest granted under this Section 4 attach to (A1) any funds properly withdrawn from contract, property rights, obligation, instrument or agreement to which an Obligor is a Collateral Account party (or that could be withdrawn pursuant to any of its rights or interests thereunder) if the Credit Agreement if deposited grant of such security interest would constitute or credited to result in either (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Obligor therein or (ii) in a Collateral Account) to the extent used, breach or termination pursuant to the terms of the Guarantor’s Governing Documentsof, to purchase Portfolio Investments or a default under, any such contract, property rights, obligation, instrument or agreement (other than Permitted Investments deposited in or credited to the extent that any such account)terms would be rendered ineffective by Section 9-406, to make payments 9-407, 9-408 or distributions to Investors 9-409 of the Uniform Commercial Code as in accordance with effect in the terms hereof relevant jurisdiction) or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) any Excluded Assets, and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or notwithstanding anything to the contrary provided in this Credit Agreement or any other Loan Document (i) Agreement, the term “Collateral” shall not include include, and the Unfunded Capital Commitments of the SOX InsidersObligors shall not be deemed to have granted a security interest in, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, Excluded Assets. and (iiB) the term “Collateral” shall not include any Portfolio InvestmentObligors, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition by notice to the Collateral Accounts Agent, exclude from the grant of a security interest provided above in this Section 4, any Special Equity Interest designated by the Borrower in reasonable detail to the Collateral Agent in such notice (it being understood that will not be considered “Collateral” and the Borrower may at any later time rescind any such other accounts shall not be subject designation by similar notice to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinCollateral Agent).
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Medley Capital Corp), Senior Secured Term Loan Credit Agreement (Medley Capital Corp)
Collateral. Subject The Borrower will (a) warrant and defend the ---------- right, title and interest of the Lender and the Security Agent in and to the terms Collateral against the claims and demands of the applicable Collateral Documentsall persons whomsoever; (b) service, or cause to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitationbe serviced, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors Mortgage Loans in accordance with the terms hereof requirements of the issuers of Master Commitments and Purchase Commitments covering the same and all applicable FHA and VA requirements (including without limitation taking all actions necessary to enforce the obligations of the obligors under such Mortgage Loans) and service, or for any other purpose permitted under cause to be serviced, all Mortgage Loans backing Mortgage-backed Securities in accordance with applicable governmental requirements and the Guarantor’s Governing Documents requirements of issuers of Purchase Commitments covering the same; (c) hold all escrow funds collected in respect of Mortgage Loans and this Credit Agreementmortgage loans backing Mortgage-backed Securities in trust, without commingling the same with non-custodial funds, and apply the same for the purposes for which such funds were collected; (Bd) comply in all respects with the proceeds terms and conditions of such withdrawn funds all Master Commitments and Purchase Commitments, and all extensions, renewals and modifications or substitutions thereof or thereto, and deliver or cause to be delivered to the applicable Investor the Mortgage Loans and Mortgage-backed Securities to be sold under each Purchase Commitment not later than three (3) Business Days prior to the items in (A) expiration thereof; and (B)e) maintain, collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything and, upon request, shall make available to the contrary Lender, the Agent or the Security Agent the originals, or copies in this Credit Agreement or any other Loan Document (i) case where the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited original has been delivered to the right Security Agent or to draw down Investor Capital Contributions on such Unfunded Capital an Investor, of its Mortgage Notes, Mortgages, Purchase Commitments, or any Master Commitments, Hedging Contracts and all related Mortgage Loan documents and instruments, and all files, surveys, certificates, correspondence, appraisals, computer programs, tapes, discs, cards, accounting records and other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition information and data relating to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Warehouse Credit Agreement (E Loan Inc), Warehouse Credit Agreement (E Loan Inc)
Collateral. Subject (a) The parties hereto intend that this Agreement constitute a security agreement and the transactions effected hereby constitute secured loans by the Lenders to the terms of Borrower under Applicable Law. As collateral security for the applicable Collateral Documentsprompt, to secure the complete and indefeasible payment and performance in full when due, whether by lapse of time, acceleration or otherwise, of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, Borrower hereby grants to the Administrative Agent, as agent for the benefit of each of the Secured Parties, as applicable, a first priority, lien on and security interest in all of the Borrower’s right, title and ▇▇▇▇ in interest in, to and on its interests in under the following, whether now existing or owned or hereafter arising or acquired or arising:by the Borrower (collectively, the “Collateral”):
(i) any the Receivables and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, related Contracts (including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors service the Receivables in connection therewith) and to issue Investor Capital Calls any accounts or obligations evidenced thereby, any guarantee thereof, all Collections and all monies due (including any payments made under any guarantee or similar credit enhancement with respect theretoto any such Receivables) or to become due or received by any Person in payment of any of the foregoing on or after the related Cutoff Date;
(ii) the Financed Vehicles related to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral such Receivables (including Financed Vehicles that have been repossessed) or in clause (i) aboveany document or writing evidencing any security interest in any Financed Vehicle and each security interest in each Financed Vehicle securing each such Receivable, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, including all proceeds from any sale or other disposition of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoFinanced Vehicles;
(iii) any and all agreements, instruments and other documents of every kind or description the Account Collateral (subject to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property Blocked Account Control Agreement, with respect to such Collateralthe Remittance Account, and subject to the Control Agreement, with respect to the Collection Account and the Hedge Reserve Account);
(iv) each Collateral Accountall Hedge Collateral;
(v) all Receivable Files, the Schedule of Receivables, and all documents, agreements and instruments included in the Receivable Files, including but not limited rights of recourse of the Borrower against Lendbuzz, Lendbuzz Funding, and/or any Dealer with respect to the Receivables;
(vi) all Records, documents and writings evidencing or related to the Receivables or the Contracts;
(vii) all rights to payment under all Insurance Policies with respect to a Financed Vehicle, including any monies collected from whatever source in connection with any default of an Obligor with respect to a Financed Vehicle and any proceeds from claims or refunds of premiums on any Insurance Policy;
(viii) all funds guaranties, indemnities, warranties, insurance (and financial assets on proceeds and premium refunds thereof) and other agreements or arrangements of whatever character from time to time supporting or securing payment of the Receivables, whether pursuant to the related Contracts or otherwise;
(ix) all rights to payment under all service contracts and other contracts and agreements associated with the Receivables;
(x) all security interests, Liens, guaranties and other encumbrances in favor of or assigned or transferred to the Borrower in and to the Receivables and Financed Vehicles;
(xi) all deposit therein accounts, monies, deposits, funds, accounts and instruments relating to the foregoing (subject to the Blocked Account Control Agreement and the Control Agreement);
(xii) the Purchase Agreement (including each Purchase Agreement Supplement) and remedies thereunder and the assignment to the Administrative Agent of all UCC financing statements filed by the Borrower against Lendbuzz Funding under or credited theretoin connection with the Purchase Agreement; and
(vxiii) any all income and all proceeds of the foregoing.
(b) The grant under this Section does not constitute and is not intended to result in a creation or an assumption by the Administrative Agent, any Agent, or any other Secured Party of any obligation of the foregoing Collateral including, without limitation, Borrower or any other Person in connection with any or all of the records of the Guarantor concerning Collateral or under any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (agreement or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)instrument relating thereto. Notwithstanding the foregoing or anything Anything herein to the contrary in this Credit Agreement or any other Loan Document notwithstanding, (i) the term “Collateral” Borrower shall not include remain liable under the Unfunded Capital Commitments of the SOX Insiders, including but not limited Contracts to the right extent set forth therein to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests perform all of its duties and obligations thereunder to the SOX Insiders, same extent as if any, unless so elected by the Guarantor in its discretionthis Agreement had not been executed, (ii) the term “Collateral” exercise by the Administrative Agent of any of its rights in the Collateral shall not include release the Borrower from any Portfolio Investment, any Portfolio Assets of its duties or any Excluded Proceeds, obligations under the Collateral and (iii) none of the term “Collateral” Administrative Agent, any Agent, or any other Secured Party shall not include have any collateral posted obligations or received in connection with the Swap Agreements, (iv) liability under the Collateral may by reason of this Agreement, nor shall any of the Administrative Agent, any Agent, or any other Secured Party be subject obligated to Permitted Liensperform any of the obligations or duties of the Borrower thereunder or to take any action to collect or enforce any claim for payment assigned hereunder. Each of Lendbuzz, (v) a Lendbuzz Funding, and the Borrower represents and warrants as to itself that each remittance of Collections by ▇▇▇▇▇▇▇▇, Lendbuzz Funding, or the Guarantor may maintain other bank accounts or securities accounts in addition Borrower to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent or any Lender hereunder will have been (A) in payment of a debt incurred by the Borrower in the ordinary course of business or financial affairs of the Lenders and the Secured Parties Borrower and (B) made in the ordinary course of business or financial affairs of the Lenders and the Borrower.
(c) Notwithstanding the foregoing grant of security interest, no account, instrument, chattel paper or other obligation or property of any kind due from, owned by or belonging to a Sanctioned Person shall not have any Lien on any property that is not “be Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Loan Agreement (Lendbuzz Inc.), Loan Agreement (Lendbuzz Inc.)
Collateral. Subject As collateral security for the payment in full when due (whether at stated maturity, by acceleration or otherwise) of its Secured Obligations, each Obligor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, Agent for the benefit of each the Secured Parties as hereinafter provided a security interest in all of such Obligor’s right, title and interest in, to and under all of the Secured Partiesfollowing property and assets, as applicablein each case whether tangible or intangible, a first prioritywherever located, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned by such Obligor or hereafter acquired and whether now existing or arising:hereafter coming into existence (all of the property described in this Section 4 being collectively referred to herein as “Collateral”):
(ia) any all Accounts, all Chattel Paper, all Deposit Accounts, all Documents, all General Intangibles (including all Intellectual Property), all Instruments (including all Promissory Notes), all Portfolio Investments, all Pledged Debt, all Pledged Equity Interests, all Investment Property not covered by the foregoing (including all Securities, all Securities Accounts and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls Security Entitlements with respect theretothereto and Financial Assets carried therein, and all Commodity Accounts and Commodity Contracts), all letters of credit and Letter-of-Credit Rights, all Money and all Goods (including Inventory and Equipment), and all Commercial Tort Claims;
(iib) to the extent relating related to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveany Collateral, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoSupporting Obligations;
(iiic) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under related to any of the foregoing Collateral and any and Collateral, all security books, correspondence, credit files, records, invoices and other property with respect papers (including all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Obligor or any computer bureau or service company from time to time acting for such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretoObligor); and
(vd) any and all proceeds Proceeds of any of the foregoing Collateral includingCollateral. IT BEING UNDERSTOOD, without limitationHOWEVER, all of that in no event shall the records of the Guarantor concerning any of the foregoing Collateral; excluding security interest granted under this Section 4 attach to (A) any funds properly withdrawn from contract, property rights, obligation, instrument or agreement to which an Obligor is a Collateral Account party (or that could be withdrawn pursuant to any of its rights or interests thereunder) if the Credit Agreement if deposited grant of such security interest would constitute or credited to result in either (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Obligor therein or (ii) a Collateral Account) to the extent used, breach or termination pursuant to the terms of the Guarantor’s Governing Documentsof, to purchase Portfolio Investments or a default under, any such contract, property rights, obligation, instrument or agreement (other than Permitted Investments deposited in or credited to the extent that any such accountterms would be rendered ineffective by Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code as in effect in the relevant jurisdiction), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) any Excluded Assets, and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or notwithstanding anything to the contrary provided in this Credit Agreement or any other Loan Document (i) Agreement, the term “Collateral” shall not include include, and the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts Obligors shall not be subject deemed to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have granted a security interest in, any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinExcluded Assets.
Appears in 2 contracts
Sources: Guarantee, Pledge and Security Agreement, Guarantee, Pledge and Security Agreement (Credit Suisse Park View BDC, Inc.)
Collateral. Subject (a) Pledgor hereby assigns and pledges to Secured Party for its benefit and the benefit of all other Lenders (as referred to in the Loan Agreement), if any, a security interest in and to all of Pledgor’s right, title and interest in and to the terms following (the “Collateral”): (i) the shares of all capital stock, limited liability interests and other equivalent equity interests of the applicable Collateral Documentssubsidiaries of Pledgor identified on Exhibit A (the “ACT Entities”), which shares and interests are also identified on Exhibit A (the “Shares”); (ii) all cash dividends, stock dividends, interests, profits, redemptions, warrants, subscription rights, stock, options, substitutions, exchanges and other distributions now or hereafter distributed by the ACT Entities in respect of or otherwise in connection with the Shares or that may hereafter be delivered to secure the possession of Pledgor or Secured Party in respect of or otherwise in connection with the Shares; (iii) Pledgor’s records with respect to the foregoing; and (iv) the proceeds of all of the foregoing.
(b) This Agreement secures the payment and performance of all obligations of Pledgor to the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements Secured Party now or hereafter existing under this Agreement and the other related documentsTransaction Documents, whether for principal, interest, costs, expenses, indemnities or otherwise (all of such obligations being the Guarantor shall grant“Secured Obligations”). Without limiting the generality of the foregoing, and shall pledge and/or assign by way this Agreement secures the payment of security, to the Administrative Agent, for the benefit of each all amounts that constitute part of the Secured PartiesObligations and would be owed by Pledgor under any Transaction Document but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving Pledgor.
(c) Pledgor shall deliver to Secured Party or an authorized agent of Secured Party as applicabledirected by Secured Party (“Secured Party’s Agent”), a first priorityall certificates representing the Shares together with stock powers endorsed in blank, and other instruments, documents and agreements as Secured Party may reasonably deem necessary to perfect any security interest and ▇▇▇▇ in and on its interests in the following, whether now owned granted or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited required to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations be granted under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit this Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantorpromptly after Pledgor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinreceipt thereof.
Appears in 2 contracts
Sources: Pledge Agreement (Act Teleconferencing Inc), Pledge Agreement (Act Teleconferencing Inc)
Collateral. Subject For the purposes of this Agreement, all of the following property now owned or at any time hereafter acquired by a Grantor or in which a Grantor now has or at any time in the future may acquire any right, title or interests (to the terms extent of the applicable Collateral Documentssuch right, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agenttitle or interest) and, for the benefit avoidance of each of doubt, wheresoever located, is collectively referred to as the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising“Collateral”:
(ia) all accounts, chattel paper, deposit accounts, documents, equipment, general intangibles, Intellectual Property, instruments, inventory, investment property, letters of credit, letter of credit rights and any and all Unfunded Capital Commitments supporting obligations related to any of the Investorsforegoing;
(b) the commercial tort claims described on Schedule 1 and on any supplement thereto received by the Collateral Trustee pursuant to Section 5.8;
(c) all books and records pertaining to the other property described in this Section 3.1;
(d) all cash or Cash Equivalents;
(e) all property of such Grantor held by any Secured Party, whether now including all property of every description, in the custody of or hereafter committedin transit to such Secured Party for any purpose, including safekeeping, collection or pledge, for the account of such Grantor or as to which such Grantor may have any right or power, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretocash;
(iif) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause all other goods (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any fixtures) and all funds personal property of such Grantor, whether tangible or intangible and financial assets on deposit therein or credited theretowherever located; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Accountg) to the extent usednot otherwise included, pursuant to the terms all proceeds of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)foregoing. Notwithstanding the foregoing foregoing, no Lien or anything security interest is hereby granted on any Excluded Assets, and Excluded Assets shall not be deemed to constitute “Collateral.” If any property of any Grantor shall cease to be “Excluded Assets,” a Lien on and security interest shall be deemed immediately granted thereon under this Agreement in favor of the contrary in this Credit Agreement or any other Loan Document (i) Collateral Trustee for the term benefit of the Secured Parties, and such property shall constitute “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinhereunder.
Appears in 2 contracts
Sources: Security Agreement (Unisys Corp), Security Agreement (Unisys Corp)
Collateral. Subject (a) The Company will cause the Collateral to constitute at all times 100% of the total number of shares of each class of Capital Stock of each Issuer then outstanding and 100% of all Intercompany Notes issued to the Company at any time whatsoever (provided, that, in addition to the pledge of non-Voting Stock of an Issuer, not more than 66% of the total combined voting power of the Voting Stock of any Issuer organized under the laws of any jurisdiction outside the United States of America, or on any Foreign Subsidiary Holdco Release Date for any Foreign Subsidiary Holdco, not more than 66% of the total combined voting power of the Voting Stock of such Foreign Subsidiary Holdco shall be required to be pledged hereunder).
(b) So long as no Event of Default shall have occurred and be continuing, the Company shall have the right to exercise all voting, consensual and other powers of ownership pertaining to the Collateral for all purposes not inconsistent with the terms of this Agreement, the Credit Agreement, the Notes, the C$ Notes or any other instrument or agreement referred to herein or therein, provided that the Company agrees that it will not vote the Collateral in any manner that is inconsistent with the terms of this Agreement, the Credit Agreement, the Notes, the C$ Notes or any such other instrument or agreement; and the Administrative Agent shall execute and deliver to the Company or cause to be executed and delivered to the Company all such proxies, powers of attorney, dividend and other orders, and all such instruments, without recourse, as the Company may reasonably request for the purpose of enabling the Company to exercise the rights and powers that it is entitled to exercise pursuant to this Section 5.4(b).
(c) The Company shall be entitled to receive and retain any dividends on the Collateral paid in cash out of earned surplus unless and until an Event of Default has occurred and is continuing. The Company shall be entitled to receive any dividends on the Collateral paid in cash to the extent necessary to fund Restricted Payments permitted pursuant to the penultimate paragraph of Section 9.15 of the Credit Agreement (“Permitted Distributions”), whether or not an Event of Default has occurred and is continuing.
(d) If any Event of Default shall have occurred, then so long as such Event of Default shall continue, and whether or not the Administrative Agent, the Canadian Administrative Agent or any Lender exercises any available right to declare any Secured Obligation due and payable or seeks or pursues any other relief or remedy available to it under applicable law or under this Agreement, the Credit Agreement, the Notes, the C$ Notes or any other agreement relating to such Secured Obligation, all dividends and other distributions on the Collateral (other than Permitted Distributions) shall be paid directly to the Administrative Agent and retained by it in the Collateral Account as part of the Collateral subject to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security this Agreement, and, if the related financing statements and the other related documentsAdministrative Agent shall so request in writing, the Guarantor shall grant, Company agrees to execute and shall pledge and/or assign by way of security, deliver to the Administrative AgentAgent appropriate additional dividend, for distribution and other orders and documents to that end, provided that if such Event of Default is cured, any such dividend or distribution theretofore paid to the benefit of each Administrative Agent shall, upon request of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
Company (i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) except to the extent relating theretofore applied to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (xSecured Obligations), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected returned by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and to the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinCompany.
Appears in 2 contracts
Sources: Credit Agreement (Iron Mountain Inc), Credit Agreement (Iron Mountain Inc)
Collateral. Subject (a) The parties hereto intend that this Agreement constitute a security agreement and the transactions effected hereby constitute secured loans by the Lenders to the terms of Borrower under Applicable Law. As collateral security for the applicable Collateral Documentsprompt, to secure the complete and indefeasible payment and performance in full when due, whether by lapse of time, acceleration or otherwise, of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, Borrower hereby grants to the Administrative Agent, as agent for the benefit of each of the Secured Parties, as applicable, a first priority, lien on and security interest in all of the Borrower’s right, title and ▇▇▇▇ in interest in, to and on its interests in under the following, whether now existing or owned or hereafter arising or acquired or arising:by the Borrower (collectively, the “Collateral”):
(i) any the Receivables and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, related Contracts (including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors service the Receivables in connection therewith) and to issue Investor Capital Calls any accounts or obligations evidenced thereby, any guarantee thereof, all Collections and all monies due (including any payments made under any guarantee or similar credit enhancement with respect theretoto any such Receivables) or to become due or received by any Person in payment of any of the foregoing on or after the related Cutoff Date;
(ii) the Financed Vehicles related to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral such Receivables (including Financed Vehicles that have been repossessed) or in clause (i) aboveany document or writing evidencing any security interest in any Financed Vehicle and each security interest in each Financed Vehicle securing each such Receivable, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, including all proceeds from any sale or other disposition of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoFinanced Vehicles;
(iii) any and all agreements, instruments and other documents of every kind or description the Account Collateral (subject to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property Blocked Account Control Agreement, with respect to such Collateralthe Remittance Account (so long as ▇▇▇▇▇ Fargo Bank, National Association is the Remittance Account Bank), and subject to the Control Agreement, with respect to the Collection Account);
(iv) each Collateral Accountall Hedge Collateral;
(v) all Receivable Files, the Schedule of Accounts, and all documents, agreements and instruments included in the Receivable Files, including but not limited rights of recourse of the Borrower against Lendbuzz, Lendbuzz Floorplan, and/or any Dealer with respect to the Receivables;
(vi) all Records, documents and writings evidencing or related to the Receivables or the Contracts;
(vii) all rights to payment under all Insurance Policies with respect to a Financed Vehicle, including any monies collected from whatever source in connection with any default of a Dealer with respect to a Financed Vehicle and any proceeds from claims or refunds of premiums on any Insurance Policy;
(viii) all funds guaranties, indemnities, warranties, insurance (and financial assets on proceeds and premium refunds thereof) and other agreements or arrangements of whatever character from time to time supporting or securing payment of the Receivables, whether pursuant to the related Contracts or otherwise;
(ix) all rights to payment under all other contracts and agreements associated with the Receivables;
(x) all security interests, Liens, guaranties and other encumbrances in favor of or assigned or transferred to the Borrower in and to the Receivables and Financed Vehicles;
(xi) all deposit therein accounts, monies, deposits, funds, accounts and instruments relating to the foregoing (subject to the Blocked Account Control Agreement and the Control Agreement);
(xii) the Purchase Agreement (including each Purchase Agreement Supplement) and remedies thereunder and the assignment to the Administrative Agent of all UCC financing statements filed by the Borrower against Lendbuzz Floorplan under or credited theretoin connection with the Purchase Agreement; and
(vxiii) any all other personal and all proceeds of any fixture property or assets of the foregoing Collateral Borrower of every kind and nature including, without limitation, all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts, chattel paper (whether tangible or electronic), deposit accounts, securities accounts, securities entitlements, letter-of-credit rights, commercial tort claims, securities and all other investment property, supporting obligations, money, any other contract rights or rights to the payment of money, insurance claims and proceeds, and all general intangibles (including all payment intangibles) (each as defined in the UCC); and
(xiv) all income and proceeds of the records foregoing.
(b) The grant under this Section does not constitute and is not intended to result in a creation or an assumption by the Administrative Agent or any other Secured Party of any obligation of the Guarantor concerning Borrower or any other Person in connection with any or all of the foregoing Collateral; excluding (A) Collateral or under any funds properly withdrawn from a Collateral Account (agreement or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)instrument relating thereto. Notwithstanding the foregoing or anything Anything herein to the contrary in this Credit Agreement or any other Loan Document notwithstanding, (i) the term “Collateral” Borrower shall not include remain liable under the Unfunded Capital Commitments of the SOX Insiders, including but not limited Contracts to the right extent set forth therein to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests perform all of its duties and obligations thereunder to the SOX Insiders, same extent as if any, unless so elected by the Guarantor in its discretionthis Agreement had not been executed, (ii) the term “Collateral” exercise by the Administrative Agent of any of its rights in the Collateral shall not include release the Borrower from any Portfolio Investment, any Portfolio Assets of its duties or any Excluded Proceeds, obligations under the Collateral and (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) none of the Administrative Agent or any other Secured Party shall have any obligations or liability under the Collateral by reason of this Agreement, nor shall any of the Administrative Agent or any other Secured Party be obligated to perform any of the obligations or duties of the Borrower thereunder or to take any action to collect or enforce any claim for payment assigned hereunder. Each of Lendbuzz, Lendbuzz Floorplan, and the Secured Parties Borrower represents and warrants as to itself that each remittance of Collections by ▇▇▇▇▇▇▇▇, Lendbuzz Floorplan, or the Borrower to the Administrative Agent or any Lender hereunder will have been (A) in payment of a debt incurred by the Borrower in the ordinary course of business or financial affairs of the Lenders and the Borrower and (B) made in the ordinary course of business or financial affairs of the Lenders and the Borrower.
(c) Notwithstanding the foregoing grant of security interest, no account, instrument, chattel paper or other obligation or property of any kind due from, owned by or belonging to a Sanctioned Person shall not have any Lien on any property that is not “be Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Loan Agreement (Lendbuzz Inc.), Loan Agreement (Lendbuzz Inc.)
Collateral. Subject Each Pledgor hereby grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the ratable benefit of each of the Secured Parties, as applicable, a first priority, security interest in such Pledgor’s right, title and ▇▇▇▇ interest in and on its interests in to the following, in each case, as to each type of property described below, whether now owned or hereafter acquired or arising:
(i) any by such Pledgor, wherever located, and all Unfunded Capital Commitments of the Investors, whether now or hereafter committedexisting or arising (collectively, including but not limited the “Collateral”):
(a) the following (the “Security Collateral”): (A) the Initial Pledged Equity, (B) the Equity Interests in any Guarantor from time to time hereafter acquired or created (collectively, the right “Additional Pledged Equity” and together with the Initial Pledged Equity, the “Pledged Equity”), (C) the certificates (if any) representing the Initial Pledged Equity and the Additional Pledged Equity, and (D) all dividends, distributions, return of capital, cash, instruments and other property from time to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Initial Pledged Equity and to issue Investor Capital Calls the Additional Pledged Equity, and all subscription warrants, rights or options issued thereon or with respect thereto;
(iib) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause all books and records (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, customer lists, credit files, printouts and other computer output materials and records) of such Pledgor pertaining to any of the Collateral; and
(c) all proceeds of, collateral for, income, royalties and other payments now or hereafter due and payable with respect to, and supporting obligations relating to, any and all of the records Collateral (including, without limitation, proceeds, collateral and supporting obligations that constitute property of the Guarantor concerning types described in clauses (a) and (b) of this Section 1 and this clause (c)) and, to the extent not otherwise included, all payments under insurance (whether or not the Collateral Agent is the loss payee thereof), or any indemnity, warranty or guaranty, payable by reason of loss or damage to or otherwise with respect to any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Credit Agreement (Select Income Reit), Pledge Agreement (Select Income Reit)
Collateral. Subject 4.1 In consideration of MSL granting or continuing to make available the Margin Facilities to the terms Customer, the Customer, as beneficial owner hereby charges, assigns and releases to MSL the following assets of the applicable Collateral Documents, Customer (as Collateral) as continuing security for the punctual payment to secure MSL on the payment respective due dates of all amounts outstanding under the Margin Facilities and all other moneys and sums due or owing from the Customer to MSL from time to time pursuant to this Agreement and for the performance of all the Obligations hereunder, obligations of the Customer to MSL from time to time pursuant to a Collateral Account Pledgethis Agreement:-
(a) all the Customer’s rights, a Security Agreementtitle and interest in and to the Securities which shall at any time hereafter and from time to time be purchased or held by MSL or its nominee for or on account of the Customer pursuant to this Agreement and any Securities deposited with MSL whether pursuant to Clause 5.1 of this Section II or otherwise, together with all dividends or interest paid or payable after the related financing statements date hereof on or in respect of any of such Securities and the other related documents, the Guarantor shall grant, and shall pledge and/or assign all accretions thereto by way of securitybonus, distributions, options, rights or otherwise howsoever accruing or offered at any time hereafter (together the "Charged Securities"); and
(b) all and any funds standing to the Administrative Agent, credit of the Margin Account and all funds held by MSL for or on account of the Customer from time to time.
4.2 MSL is hereby irrevocably authorized to hold the Charged Securities in its own name or in the name of its nominee or be deposited in a safe custody in a designated account with its bankers or with any other institution which provides facilities for the benefit safe custody of each documents. In the case of Securities in Hong Kong, such institution shall be acceptable to the SFC as a provider of safe custody services and the Customer hereby irrevocably authorizes MSL to do and execute any and all acts or things and documents necessary to transfer, complete and/or vest title to all of the Secured PartiesCharged Securities to it or its nominee and to do all such things and execute all such documents as it may reasonably require in order to perfect the security given hereunder.
4.3 The security given by the Customer hereunder shall be in addition to and may be enforced by MSL without prejudice to any other guarantee, as applicablepledge, lien, indemnity, assurance, mortgage, charge, debenture or collateral security or other power, right or remedy now or at any time hereafter held or available to MSL in respect of the Margin Facilities or the obligations of the Customer hereunder and shall be a first prioritycontinuing security notwithstanding the death, security bankruptcy, liquidation, winding-up, insolvency, incapacity or any change in the constitution of the Customer or any intermediate or partial payment or settlement of account or satisfaction of the whole or any part of the amounts outstanding under the Margin Facilities or any obligations of the Customer under this Agreement.
4.4 The Customer hereby irrevocably undertakes to MSL that all the Customer’s rights, title and interest and ▇▇▇▇ in and to the Collateral will at all relevant times constitute the legal and unencumbered property of the Customer free from any trust, lien, charge, mortgage, pledge or other encumbrance (save as created or required hereunder). The Customer shall provide MSL with signed transfers or other instruments necessary for MSL to exercise its rights under this Agreement.
4.5 All dividends, interests, income, payments or other distributions received by MSL in respect of the Charged Securities will be credited to the Margin Account on its interests in receipt by MSL.
(a) The Customer hereby represents and warrants to MSL that during the following, whether now owned or hereafter acquired or arisingcontinuance of the Charge:
(i) any the Customer has and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited will maintain unencumbered and absolute title to the right Charged Securities (subject only to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretothe Charge);
(ii) the Charge constitutes and will continue to constitute the extent relating to the Unfunded Capital Commitments valid and legally binding obligations of the Investors constituting Collateral Customer enforceable in clause accordance with its terms.
(b) The Customer hereby undertakes and agrees that during the continuance of the Charge, the Customer shall:
(i) abovenot mortgage, charge, pledge or otherwise encumber or assign, transfer or otherwise deal with or grant or suffer to arise any third party rights over or against the whole or any part of the Collateral or purport so to do ranking in priority to or pari passu with the Charge, except in MSL’s favour;
(xii) deposit with MSL or to its order, at such place as MSL may from time to time direct, all certificates, instruments and evidence of title to the Constituent DocumentsCharged Securities, (y) the Subscription Agreements and Side Letterstogether, if anywhere appropriate, with all such necessary forms of such Investors and (z) any and all guaranties transfer or other instructions, duly executed in favour of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toMSL, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights as MSL may from time to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretotime require;
(iii) at any time and all agreementsfrom time to time, instruments execute and deliver such further assignments, charges, authorities and other documents of every kind as MSL may from time to time require for perfecting its title to or description for vesting or enabling MSL to vest the extent evidencing or supporting obligations under any full benefit of the foregoing Collateral and any and all security in its favour, which assignments, charges, authorities and other property with respect to documents shall be prepared by MSL or on its behalf, at the cost of the Customer, and shall contain such Collateral;provisions for MSL’s benefit as MSL may reasonably require, for which purposes the Customer hereby irrevocably appoints MSL as the Customer’s lawful attorney; and
(iv) each Collateral Accountobtain and maintain in full force and effect all governmental and other approvals, including but not limited to any authorities, licenses and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received consents required in connection with the Swap Agreements, (iv) Charge and to do or cause to be done all other acts and things necessary or desirable for the Collateral may be subject performance of all the obligations of the Customer pursuant to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap this Agreement, as provided therein.
Appears in 2 contracts
Collateral. Subject As collateral security for the prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations, as of the Closing Date each Grantor hereby pledges and grants to the terms of the applicable Second Priority Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Second Priority Secured Parties, as applicable, a first priority, Lien on and security interest and ▇▇▇▇ in and on its interests to all of such Grantor’s right, title and interest in the followingfollowing personal property, whether now owned by such Grantor or hereafter acquired and whether now existing or arisinghereafter coming into existence and wherever located (all being collectively referred to herein as “Collateral”):
(a) the Instruments of such Grantor, together with all payments thereon or thereunder:
(b) all Inventory of such Grantor;
(c) all General Intangibles (including payment intangibles (as defined in the UCC) and Software) of such Grantor;
(d) all Equipment (including any corporate aircraft) of such Grantor;
(e) all Documents of such Grantor;
(f) all Contracts of such Grantor;
(g) all Goods of such Grantor;
(h) all Investment Property of such Grantor;
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, Commercial Tort Claims of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toGrantor; specified on Schedule VI, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights as from time to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretotime updated; and
(vj) any all other tangible and all proceeds intangible personal property of any of the foregoing Collateral such Grantor; including, without limitation, all Proceeds, products, accessions, rents, profits, income, benefits, substitutions, additions and replacements of the records of the Guarantor concerning and to any of the foregoing Collateral; excluding property of such Grantor described in the preceding clauses of this Section 3 (A) including, without limitation, any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent usedproceeds of insurance thereon, pursuant to the terms of the Guarantor’s Governing Documentsinsurance claims and all rights, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to claims and benefits against any such accountPerson relating thereto), other rights to make payments not otherwise included in the foregoing and all books, correspondence, files, records, invoices and other papers, including without limitation all tapes, cards, computer runs, computer programs, computer files and other papers, documents and records in the possession or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds control of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement Grantor or any other Loan Document (i) the term computer bureau or service company from time to time acting for such Grantor; provided, however, that “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinAssets.
Appears in 2 contracts
Sources: Note Purchase Agreement (Moneygram International Inc), Intercreditor Agreement (Moneygram International Inc)
Collateral. Subject (a) The parties hereto intend that this Agreement constitute a security agreement and the transactions effected hereby constitute secured loans by the Lenders to the terms of Borrower under Applicable Law. As collateral security for the applicable Collateral Documentsprompt, to secure the complete and indefeasible payment and performance in full when due, whether by lapse of time, acceleration or otherwise, of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, Borrower hereby grants to the Administrative Agent, as agent for the benefit of each of the Secured Parties, as applicable, a first priority, lien on and security interest in all of the Borrower’s right, title and ▇▇▇▇ in interest in, to and on its interests in under the following, whether now existing or owned or hereafter arising or acquired or arising:by the Borrower (collectively, the “Collateral”):
(i) any the Receivables and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, related Contracts (including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors service the Receivables in connection therewith) and to issue Investor Capital Calls any accounts or obligations evidenced thereby, any guarantee thereof, all Collections and all monies due (including any payments made under any guarantee or similar credit enhancement with respect theretoto any such Receivables) or to become due or received by any Person in payment of any of the foregoing on or after the related Cutoff Date;
(ii) the Financed Vehicles related to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral such Receivables (including Financed Vehicles that have been repossessed) or in clause (i) aboveany document or writing evidencing any security interest in any Financed Vehicle and each security interest in each Financed Vehicle securing each such Receivable, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, including all proceeds from any sale or other disposition of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoFinanced Vehicles;
(iii) any and all agreements, instruments and other documents of every kind or description the Account Collateral (subject to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property Blocked Account Control Agreement, with respect to such Collateralthe Remittance Account, and subject to the Control Agreement, with respect to the Collection Account and the Hedge Reserve Account);
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; andHedge Collateral;
(v) any all Receivable Files, the Schedule of Receivables, and all proceeds documents, agreements and instruments included in the Receivable Files, including rights of any recourse of the Borrower against Lendbuzz, Lendbuzz Funding, and/or any Dealer with respect to the Receivables;
(vi) all Records, documents and writings evidencing or related to the Receivables or the Contracts;
(vii) all rights to payment under all Insurance Policies with respect to a Financed Vehicle, including any monies collected from whatever source in connection with any default of an Obligor with respect to a Financed Vehicle and any proceeds from claims or refunds of premiums on any Insurance Policy;
(viii) all guaranties, indemnities, warranties, insurance (and proceeds and premium refunds thereof) and other agreements or arrangements of whatever character from time to time supporting or securing payment of the Receivables, whether pursuant to the related Contracts or otherwise;
(ix) all rights to payment under all service contracts and other contracts and agreements associated with the Receivables;
(x) all security interests, Liens, guaranties and other encumbrances in favor of or assigned or transferred to the Borrower in and to the Receivables and Financed Vehicles;
(xi) all deposit accounts, monies, deposits, funds, accounts and instruments relating to the foregoing Collateral (subject to the Blocked Account Control Agreement and the Control Agreement);
(xii) the Purchase Agreement (including each Purchase Agreement Supplement) and remedies thereunder and the assignment to the Administrative Agent of all UCC financing statements filed by the Borrower against Lendbuzz Funding under or in connection with the Purchase Agreement;
(xiii) all other personal and fixture property or assets of the Borrower of every kind and nature including, without limitation, all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts, chattel paper (whether tangible or electronic), deposit accounts, securities accounts, securities entitlements, letter-of-credit rights, commercial tort claims, securities and all other investment property, supporting obligations, money, any other contract rights or rights to the payment of money, insurance claims and proceeds, and all general intangibles (including all payment intangibles) (each as defined in the UCC); and
(xiv) all income and proceeds of the records foregoing.
(b) The grant under this Section does not constitute and is not intended to result in a creation or an assumption by the Administrative Agent or any other Secured Party of any obligation of the Guarantor concerning Borrower or any other Person in connection with any or all of the foregoing Collateral; excluding (A) Collateral or under any funds properly withdrawn from a Collateral Account (agreement or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)instrument relating thereto. Notwithstanding the foregoing or anything Anything herein to the contrary in this Credit Agreement or any other Loan Document notwithstanding, (i) the term “Collateral” Borrower shall not include remain liable under the Unfunded Capital Commitments of the SOX Insiders, including but not limited Contracts to the right extent set forth therein to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests perform all of its duties and obligations thereunder to the SOX Insiders, same extent as if any, unless so elected by the Guarantor in its discretionthis Agreement had not been executed, (ii) the term “Collateral” exercise by the Administrative Agent of any of its rights in the Collateral shall not include release the Borrower from any Portfolio Investment, any Portfolio Assets of its duties or any Excluded Proceeds, obligations under the Collateral and (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) none of the Administrative Agent or any other Secured Party shall have any obligations or liability under the Collateral by reason of this Agreement, nor shall any of the Administrative Agent or any other Secured Party be obligated to perform any of the obligations or duties of the Borrower thereunder or to take any action to collect or enforce any claim for payment assigned hereunder. Each of Lendbuzz, Lendbuzz Funding, and the Secured Parties Borrower represents and warrants as to itself that each remittance of Collections by ▇▇▇▇▇▇▇▇, Lendbuzz Funding, or the Borrower to the Administrative Agent or any Lender hereunder will have been (A) in payment of a debt incurred by the Borrower in the ordinary course of business or financial affairs of the Lenders and the Borrower and (B) made in the ordinary course of business or financial affairs of the Lenders and the Borrower.
(c) Notwithstanding the foregoing grant of security interest, no account, instrument, chattel paper or other obligation or property of any kind due from, owned by or belonging to a Sanctioned Person shall not have any Lien on any property that is not “be Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Loan Agreement (Lendbuzz Inc.), Loan Agreement (Lendbuzz Inc.)
Collateral. Subject As security for the prompt performance, observance and payment in full of all Obligations, the Borrower hereby grants to the terms Bank a continuing security interest in, a lien upon and a right of setoff against, and the Borrower hereby assign, transfer, pledge and set over to the Bank the following (which together with any of the applicable Collateral DocumentsBorrower’s other property in which the Bank may at any time have a security interest or lien, whether pursuant to secure this Agreement or any supplement hereto, or otherwise, are herein collectively referred to as the payment and performance “Collateral”): All of the Obligations hereunderBorrower’s right, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements title and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the followingto all personal property, tangible and intangible, wherever located or situated and whether now owned owned, presently existing or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investorscreated, whether now or hereafter committedincluding, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors all: (a) Accounts; (b) Equipment; (c) Inventory; (d) financial assets and to issue Investor Capital Calls with respect thereto;
investment property; (iie) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) abovemoneys, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security securities and other property and the proceeds thereof, now or hereafter held or received by, or in transit to, the Bank from or for the Borrower, whether for safekeeping, pledge, custody, transmission, collection or otherwise, and all of the Borrower’s deposits (general or special), balances, sums and credits with or in the control of the Bank at any time existing; (f) rights, remedies, security and liens, in, to and in respect of the Accounts and other Collateral, including, without limitation, rights of stoppage in transit, replevin, repossession and reclamation and other rights and remedies of an unpaid vendor, lienor or secured party, guaranties or other contracts of suretyship with respect to such the Accounts and other Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein deposits or credited thereto; and
(v) any and all proceeds other security for the obligation of any of the foregoing Collateral Account Debtor, and credit and other insurance; (g) goods relating to, or which by sale have resulted in, Accounts including, without limitation, all of goods described in invoices, documents, contracts or instruments with respect to, or otherwise representing or evidencing, any Accounts or other Collateral, including without limitation, all returned, reclaimed or repossessed goods; (h) Deposit Accounts (whether or not maintained with the Bank); (i) books, records of the Guarantor concerning (whether paper, computer or electronic), data, tapes, discs, other media, ledger cards, computer and software programs, files, access codes, records and procedure manuals relating thereto, together with all computer or other data processing equipment on which any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (is stored, and other property and general intangibles evidencing or that could be withdrawn pursuant relating to the Credit Agreement if deposited Accounts, Equipment, Inventory and any other Collateral or credited to a Collateral Accountany Account Debtor, together with the file cabinets or containers in which the foregoing are stored (“Records”); (j) to general intangibles of every kind and description, including without limitation, trade names and trademarks, and the extent used, pursuant to the terms goodwill of the Guarantor’s Governing Documentsbusiness symbolized thereby, to purchase Portfolio Investments patents, copyrights, licenses and federal, state and local tax refund claims of all kinds; (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, k) letter of credit rights; (l) commercial tort claims; and (Bm) the supporting obligations and products and proceeds of such withdrawn funds (the items foregoing, in (A) any form, including, without limitation, insurance proceeds and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing any claims against third parties for loss or anything damage to the contrary in this Credit Agreement or destruction of any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments or all of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 2 contracts
Sources: Loan and Security Agreement (Precision Aerospace Components, Inc.), Loan and Security Agreement (Precision Aerospace Components, Inc.)
Collateral. Subject to the terms of the applicable Collateral DocumentsExcept as specified in Schedule 2.16(a) hereto, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arisingbe secured at all times by:
(i) a first priority perfected security interest in and lien upon all presently owned and hereafter acquired tangible and intangible personal property and fixtures of each Borrower, including without limitation any intercompany notes, obligations or agreements, subject only to (A) any Permitted Liens and all Unfunded Capital Commitments (B) the exclusion of any License, except to the extent (if any) that such a security interest is permitted or not prohibited by the Act (as defined in Section 4.08), and the rules, regulations and policies of the InvestorsFCC (but including, whether now to the maximum extent permitted by law, all rights incident or hereafter committedappurtenant to any such License, including but not limited to without limitation the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments receive all proceeds derived or arising from such Investors and to issue Investor Capital Calls or in connection with respect theretothe sale, assignment or transfer thereof);
(ii) first mortgages on all presently owned and hereafter acquired real estate owned by each Borrower, subject only to the extent relating any Permitted Liens, together with mortgagee’s title insurance policies acceptable to the Unfunded Capital Commitments of the Investors constituting Administrative Agent and Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoAgent;
(iii) any and collateral assignments of or leasehold mortgages on all agreementsreal estate leases, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under in each case, in which any of the foregoing Borrowers now has or may in the future have an interest, subject only to any Permitted Liens, and such third party consents, lien waivers, non-disturbance agreements and estoppel certificates as Administrative Agent and Collateral Agent shall reasonably require, together with mortgagee’s title insurance policies acceptable to Administrative Agent and any and all security and other property with respect to such CollateralCollateral Agent;
(iv) a first priority perfected collateral assignment and/or pledge of all of the issued and outstanding Equity Securities of each Collateral Account, including but not limited to any Borrower and all funds warrants, options, and financial assets on deposit therein or credited theretoother rights to purchase such Equity Securities; and
(v) any first priority perfected collateral assignments of the Licenses and all proceeds of any of purchase agreements, construction contracts, management agreements, LMAs, programming agreements, licenses, permits, authorizations (except for licenses and permits issued by the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) FCC to the extent used, pursuant it is unlawful to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited grant a security interest in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents licenses and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (Apermits) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the as Administrative Agent and Collateral Agent shall reasonably deem necessary to protect the Secured Parties interests of Lenders, together with such third party consents, lien waiver and estoppel certificates as Administrative Agent and Collateral Agent shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, reasonably require and as provided thereinpermitted by the underlying document.
Appears in 2 contracts
Sources: Credit Agreement (Coconut Palm Acquisition Corp.), Credit Agreement (Coconut Palm Acquisition Corp.)
Collateral. Subject to As collateral security for the terms prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the applicable Senior Secured Obligations, each Debtor hereby pledges to Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the ratable benefit of each of the Secured PartiesParties to the extent provided in the Intercreditor Agreement, as applicableand grants to Collateral Agent, for the ratable benefit of the Secured Parties to the extent provided in the Intercreditor Agreement, a first priority, security interest in, all of such Debtor’s right, title and ▇▇▇▇ in and on its interests interest in the followingfollowing property, whether now owned by such Debtor or hereafter acquired and whether now existing or arising:hereafter coming into existence (all being collectively referred to herein as “Collateral”):
(a) all Accessions;
(b) all Accounts;
(c) all As-Extracted Collateral;
(d) all Chattel Paper;
(e) all Commercial Tort Claims;
(f) all Commodity Accounts;
(g) all Commodity Contracts;
(h) all Deposit Accounts;
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoFinancial Assets;
(iij) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoGeneral Intangibles;
(iiik) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such CollateralGoods;
(ivl) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; andInstruments;
(m) all Inventory;
(n) all Investment Property;
(o) all Intellectual Property;
(p) all Equipment;
(q) all Contracts;
(r) all Documents;
(s) all Letter-of-Credit Rights;
(t) all Payment Intangibles;
(u) all Software;
(v) any and all proceeds of Supporting Obligations;
(w) all Pledged Stock;
(x) all Pledged Obligations;
(y) all Pledged Interests;
(z) all shares, securities, moneys or property representing a dividend on any of the foregoing Collateral Pledged Stock, or representing a distribution or return of capital upon or in respect of the Pledged Stock, or resulting from a split-up, revision, reclassification or other like change of the Pledged Stock or otherwise received in exchange therefor, and any subscription warrants, rights or options issued to the holders of, or otherwise in respect of, the Pledged Stock;
(aa) without affecting the obligations of such Debtor under any provision prohibiting such action hereunder or under the Financing Documents, in the event of any consolidation or merger in which an Issuer, LLC or Partnership is not the surviving entity, all shares of each class of the capital stock of the successor corporation or interests or certificates of the successor limited liability company or partnership owned by the Debtors (unless such successor is such Debtor itself) formed by or resulting from such consolidation or merger; all rights, claims and benefits of such Debtor against any Person arising out of, relating to or in connection with Inventory or Equipment purchased by such Debtor, including, without limitation, any such rights, claims or benefits against any Person storing or transporting such Inventory or Equipment; and all other tangible and intangible personal property and fixtures of the records such Debtor, including without limitation all Proceeds, products, offspring, accessions, rents, profits, income, benefits, substitutions and replacements of the Guarantor concerning and to any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to property of such Debtor described in the Credit Agreement if deposited or credited to a Collateral Account) preceding clauses of this Section 3.1, and, to the extent usedrelated to any property described in such clauses or such Proceeds, pursuant products and accessions, all books, correspondence, credit files, records, invoices and other papers, including without limitation all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Debtor or any computer bureau or service company from time to time acting for such Debtor. Furthermore, if the grant, pledge, collateral transfer or assignment of any rights of any Debtor under any contract included in the Collateral is expressly prohibited by such contract, then the security interest hereby granted nonetheless remains effective to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected extent allowed by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements UCC or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property applicable law but is otherwise limited by that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinprohibition.
Appears in 2 contracts
Sources: Security Agreement (Spartech Corp), Security Agreement (Spartech Corp)
Collateral. Subject As collateral security for the prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations, as of the Effective Date each Grantor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, Lien on and security interest and ▇▇▇▇ in and on its interests to all of such Grantor’s right, title and interest in the followingfollowing personal property, whether now owned by such Grantor or hereafter acquired and whether now existing or arisinghereafter coming into existence and wherever located (all being collectively referred to herein as “Collateral”):
(a) the Instruments of such Grantor, together with all payments thereon or thereunder:
(b) all Inventory of such Grantor;
(c) all General Intangibles (including payment intangibles (as defined in the UCC) and Software) of such Grantor;
(d) all Equipment (including any corporate aircraft) of such Grantor;
(e) all Documents of such Grantor;
(f) all Contracts of such Grantor;
(g) all Goods of such Grantor;
(h) all Investment Property of such Grantor;
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, Commercial Tort Claims of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toGrantor; specified on Schedule VI, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights as from time to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretotime updated; and
(vj) any all other tangible and all proceeds intangible personal property of any of the foregoing Collateral such Grantor, including, without limitation, all Proceeds, products, accessions, rents, profits, income, benefits, substitutions, additions and replacements of the records of the Guarantor concerning and to any of the foregoing Collateral; excluding property of such Grantor described in the preceding clauses of this Section 3 (A) including, without limitation, any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent usedproceeds of insurance thereon, pursuant to the terms of the Guarantor’s Governing Documentsinsurance claims and all rights, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to claims and benefits against any such accountPerson relating thereto), other rights to make payments not otherwise included in the foregoing and all books, correspondence, files, records, invoices and other papers, including without limitation all tapes, cards, computer runs, computer programs, computer files and other papers, documents and records in the possession or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds control of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement Grantor or any other Loan Document (i) the term computer bureau or service company from time to time acting for such Grantor; provided, however, that “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinAssets.
Appears in 2 contracts
Sources: Security Agreement (Moneygram International Inc), Security Agreement (Moneygram International Inc)
Collateral. Subject to (a) The Borrower, as security for the terms of the applicable Collateral Documents, to secure the prompt payment and performance of the Secured Obligations hereunderwhen due, pursuant hereby assigns, conveys, transfers, delivers and sets over to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantIssuing Lender, and shall pledge and/or assign by way of security, grants to the Administrative Agent, for the benefit of each Issuing Lender a Lien on and a security interest in all assets of the Secured PartiesBorrower other than its books and records and its right, as applicable, a first priority, security title and interest and ▇▇▇▇ in and on its interests in the following, whether (now owned existing or hereafter acquired or arising:) in, to and under the Regulatory Account and the Administrative Account, including the Borrower’s right, title and interest (now existing or hereafter acquired or arising) in, to and under the following (collectively, the “Collateral”):
(i) any the Borrower’s interest, if any, in the Reinsurance Trust Account; provided, that such Lien and security interest is subject in all Unfunded Capital Commitments cases and in every respect to the rights of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on Reinsurance Trustee in such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretointerest;
(ii) the Surplus Account, and all Cash, securities, Instruments and other property held in the Surplus Account from time to time, and all certificates and Instruments, if any, from time to time representing the Surplus Account or any property therein. Notwithstanding the status of the Surplus Account and financial assets as Collateral, the Surplus Account and such assets shall remain available to make payments in the priority and to the recipients identified pursuant tothe Priority of Payments. In addition, the Issuing Lender agrees not to issue any Notice of Exclusive Control (as defined in the Securities Account Control Agreement) unless an Event of Default has occurred and is continuing. The Issuing Lender hereby authorizes any disposition of property from the Surplus Account free of any security interest if, and only to the extent relating to that, such disposition is made, and the Unfunded Capital Commitments proceeds are applied, in accordance with the Priority of the Investors constituting Collateral in clause Payments;
(iiii) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Lettersall rights, if any, of such Investors and the Borrower in (zA) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toCash, in each case of clauses (x)securities, (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security Instruments and other property with respect held or deemed to such Collateral;
(iv) each Collateral Account, including but not limited to be held in any and all funds and financial assets on deposit therein express or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, constructive trust established pursuant to the terms of the Guarantor’s Governing Documents, Reinsurance Agreement from time to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreementtime, and (B) the proceeds of such withdrawn funds (the items in (A) all certificates and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX InsidersInstruments, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include from time to time representing any Portfolio Investment, any Portfolio Assets such express or constructive trust or any Excluded Proceedsproperty therein; provided, (iii) that such Lien and security interest is subject in all cases and in every respect to the term “Collateral” shall not include any collateral posted or received rights of the Ceding Company in connection with the Swap Agreements, such rights;
(iv) any and all of the Collateral following, whether now existing or hereafter arising and wheresoever the same may be subject to Permitted Lienslocated: all rights of the Borrower under the Transaction Documents, accounts (other than the Regulatory Account and the Reinsurance Trust Account), chattel paper, deposit accounts, documents, equipment, general intangibles, goods, instruments, inventory, investment property, letters of credit, letter-of-credit rights, payment intangibles, securities accounts and supporting obligations;
(v) a all other property or rights delivered or assigned by the Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition on its behalf to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject Issuing Lender from time to control agreements time under this Agreement or other restrictions and otherwise, to secure or guarantee payment of the Secured Obligations; and
(vi) to the Administrative Agent extent not covered above, all products and proceeds of, and all dividends, collections, earnings, accruals, and other payments with respect to, any or all of the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 2 contracts
Sources: Reimbursement Agreement (Protective Life Insurance Co), Reimbursement Agreement (Protective Life Corp)
Collateral. Subject As collateral security for the payment in full when due (whether at stated maturity, by acceleration or otherwise), of its Secured Obligations, each Obligor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, Agent for the benefit of each of the Secured Parties, Parties as applicable, hereinafter provided a first priority, security interest in all of such Obligor’s right, title and ▇▇▇▇ in interest in, to and on its interests in under all of such Obligor’s personal property and assets, including the following, in each case whether tangible or intangible, wherever located, and whether now owned by such Obligor or hereafter acquired and whether now existing or arising:hereafter coming into existence (all of the property described in this Section 4, other than the property excluded pursuant to the proviso to this Section 4, being collectively referred to herein as “Collateral”):
(ia) any all Accounts, all Chattel Paper, all Deposit Accounts, all Documents, all General Intangibles (including all Intellectual Property), all Instruments (including all Promissory Notes), all Portfolio Investments, all Pledged Debt, all Pledged Equity Interests, all Investment Property not covered by the foregoing (including all Securities, all Securities Accounts and all Unfunded Capital Commitments Security Entitlements with respect thereto and Financial Assets carried therein, all Commodity Accounts and Commodity Contracts, and, for the avoidance of doubt, all of such Obligor’s interest in the limited liability company or membership interests of each Subsidiary owned by such Obligor, all of such Obligor’s right to participate in the management of the Investorsbusiness and affairs of each such issuer or otherwise control each such Subsidiary, whether now or hereafter committedand all of such Obligor’s rights as a member of each such Subsidiary), all letters of credit and Letter-of-Credit Rights, all Money and all Goods (including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors Inventory and to issue Investor Capital Calls with respect theretoEquipment), and all Commercial Tort Claims;
(iib) to the extent relating related to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveany Collateral, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoSupporting Obligations;
(iiic) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under related to any of the foregoing Collateral and any and Collateral, all security books, correspondence, credit files, records, invoices and other property with respect papers (including all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Obligor or any computer bureau or service company from time to time acting for such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretoObligor); and
(vd) any and all proceeds Proceeds of any of the foregoing Collateral includingCollateral. PROVIDED, without limitationHOWEVER, all that in no event shall the security interest granted under this Section 4 attach to (and there shall be excluded from the definition of the records of the Guarantor concerning any of the foregoing “Collateral; excluding ”) (A) any funds properly withdrawn from contract, property rights, obligation, instrument or agreement to which an Obligor is a Collateral Account party (or that could be withdrawn pursuant to any of its rights or interests thereunder) if the Credit Agreement if deposited grant of such security interest would constitute or credited to result in either (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Obligor therein or (ii) a Collateral Account) to the extent used, breach or termination pursuant to the terms of the Guarantor’s Governing Documentsof, to purchase Portfolio Investments or a default under, any such contract, property rights, obligation, instrument or agreement (other than Permitted Investments deposited in or credited to the extent that any such accountterms would be rendered ineffective by Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code as in effect in the relevant jurisdiction), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) any Excluded Assets, and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or notwithstanding anything to the contrary provided in this Credit Agreement or any other Loan Document (i) Agreement, the term “Collateral” shall not include include, and the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts Obligors shall not be subject deemed to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have granted a security interest in, any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinExcluded Assets.
Appears in 2 contracts
Sources: Guarantee, Pledge and Security Agreement (Barings Capital Investment Corp), Guarantee, Pledge and Security Agreement (Barings BDC, Inc.)
Collateral. (i) Subject to the terms proviso below, each of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements Parent and the other related documents, the Guarantor shall grantBorrower shall, and shall pledge and/or assign by way of securitycause each other Loan Party to, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇▇ in and ▇ ▇▇▇▇ pursuant to the Security Instruments on substantially all of its interests Property located in the following, whether United States now owned or at any time hereafter acquired by it or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committedother Loan Party, including but not limited to (A) all Equipment, Accounts, Chattel Paper, Documents, General Intangibles, Instruments and Inventory (as each such term is defined in the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors UCC), (B) all real property and to issue Investor Capital Calls with respect thereto;(C) the Equity Interests in each Domestic Subsidiary and Foreign Subsidiary; and
(ii) subject to the extent relating proviso below, upon the formation or acquisition of any Significant Domestic Subsidiary or upon any Subsidiary becoming a Significant Domestic Subsidiary after the Initial Availability Date, the Borrower shall promptly:
(A) cause such Significant Domestic Subsidiary to ▇▇▇▇▇ ▇ ▇▇▇▇ pursuant to the Unfunded Capital Commitments Security Instruments on substantially all of its Property located in the Investors constituting Collateral in clause (i) aboveUnited States now owned or at any time hereafter acquired by it, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all Equipment, Accounts, Chattel Paper, Documents, General Intangibles, Instruments, and Inventory (as each such term is defined in the UCC);
(B) pledge, or cause the appropriate Person to pledge, pursuant to the Guaranty and Collateral Agreement or the Pledge Agreement, as applicable, all of the records Equity Interests in such Significant Domestic Subsidiary (and, to the extent certificated, deliver original stock certificates or other certificates evidencing the capital stock of such entity, together with an appropriate undated stock power for each certificate, duly executed in blank by the registered owner thereof);
(C) cause such Significant Domestic Subsidiary to grant a Mortgage on any real property owned by such Significant Domestic Subsidiary; and
(D) execute and deliver, or cause such Significant Domestic Subsidiary to execute and deliver, such other additional documents and certificates as shall reasonably be requested by the Administrative Agent; and
(iii) subject to the proviso below, upon the formation or acquisition of any Foreign Subsidiary or any Domestic Subsidiary that is not a Significant Domestic Subsidiary after the Initial Availability Date, Parent and the Borrower shall promptly:
(A) pledge, or cause the appropriate Person to pledge, pursuant to the Pledge Agreement, (1) 65% of the Guarantor concerning voting capital stock and 100% of the non-voting capital stock of each first-tier Foreign Subsidiary that is a CFC (and, to the extent certificated and to the extent that delivery of such certificates is not prohibited due to a Governmental Requirement, deliver original stock certificates or other certificates evidencing 65% of the voting capital stock and 100% of the non-voting capital stock of such entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (2) 100% of the capital stock of each Domestic Subsidiary that is not a Significant Domestic Subsidiary and each Foreign Subsidiary that is not a CFC or a Subsidiary of a CFC (and, to the extent certificated, deliver original stock certificates or other certificates evidencing the capital stock of such entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof); and
(B) execute and deliver, or cause such Foreign Subsidiary or Domestic Subsidiary, as applicable, to execute and deliver, such other additional documents and certificates as shall reasonably be requested by the Administrative Agent; provided that the foregoing clauses (i), (ii) and (iii) shall not require the creation or perfection of pledges of, security interests in or Mortgages on, (A) the Equity Interests in, and any Property of, any ABS Subsidiary, (B) any real property, whether leasehold interests or owned real property, located in any jurisdiction other than the United States, (C) any leasehold interests or any owned real property that has a book value of less than $5,000,000 on an individual basis (provided, however, if in the aggregate, the book value of all real property owned by any Loan Party or Restricted Subsidiary and not subject to a Mortgage (“Non-Mortgaged Real Property”) exceeds $15,000,000 as of the last day of any Fiscal Quarter, then the Borrower shall, within thirty (30) days after delivery of the financial statements required to be delivered for such Fiscal Quarter pursuant to Section 8.01(a), deliver Mortgages with respect to as much of such real property as is necessary to ensure that the aggregate book value of all Non-Mortgaged Real Property as of the last day of such Fiscal Quarter does not exceed $15,000,000), (D) any Property identified on Schedule 8.06, (E) the Equity Interests owned by any Loan Party or a Restricted Subsidiary in a Joint Venture to the extent (but only to the extent) (i) the Organization Documents of such Joint Venture or any other agreement relating to such Joint Venture prohibit the granting of a Lien on such Equity Interests or (ii) such Equity Interests in such Joint Venture are otherwise pledged as collateral as permitted by Section 9.02(g), provided however, if any of the foregoing Collateral; excluding (A) conditions cease to be in effect for any funds properly withdrawn from a Collateral Account (or that could reason, then the Equity Interests in such Joint Venture shall automatically be withdrawn subject to the lien and security interest pursuant to the Credit Agreement if deposited Guaranty and Collateral Agreement, (F) any Property that in the reasonable judgment of the Administrative Agent, the cost of creating or credited perfecting such pledges, security interests or Mortgages on such Property would be excessive in view of the benefits to be obtained by the Lenders therefrom, (G) any assets directly or indirectly legally owned by any CFC or more than 65% of the capital stock of any CFC, (H) more than 65% of the voting Equity Interests of any Excluded Subsidiary, (I) any Property subject to a Lien permitted by Section 9.02(b), (d) or (e), (K) Equity Interests in Hanover Cayman Limited, Production Operators Cayman Inc. or Exterran (Thailand) Ltd. or (L) Equity Interests of a direct or indirect Subsidiary of any CFC; provided further that the Borrower and any Guarantor will have ninety (90) days to perfect Liens on Property acquired in an acquisition. The Borrower will also (1) deliver a Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each parcel of real property that becomes Collateral Accountsubject to a Mortgage pursuant to this Section 8.06(a) on which a Building or Manufactured (Mobile) Home is located and a policy of flood insurance that covers any such parcel that is located in a “special flood hazard area” as defined in the Flood Insurance Laws and (2) if reasonably requested by the Administrative Agent with respect to each parcel of real property that becomes Collateral subject to a Mortgage pursuant to this Section 8.06(a), provide the Lenders with (x) title and extended coverage insurance covering such interest in real property in an amount equal to the extent usedestimated fair market value of such interest in real property (or such other amount as shall be reasonably acceptable by the Administrative Agent) as well as a current ALTA survey thereof, pursuant to the terms of the Guarantortogether with a surveyor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, certificate and (By) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing any consents or anything to the contrary in this Credit Agreement estoppels reasonably deemed necessary or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected advisable by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received Administrative Agent in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinMortgage.
Appears in 2 contracts
Sources: Credit Agreement (Exterran Corp), Credit Agreement (Exterran Holdings Inc.)
Collateral. Subject The Borrower will (a) warrant and defend the right, title and interest of the Lender and the Security Agent in and to the terms Collateral against the claims and demands of the applicable Collateral Documentsall persons whomsoever; (b) service, or cause to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitationbe serviced, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors Mortgage Loans in accordance with the terms hereof requirements of the issuers of Master Commitments and Purchase Commitments covering the same and all applicable FHA and VA requirements (including without limitation taking all actions necessary to enforce the obligations of the obligors under such Mortgage Loans) and service, or for any other purpose permitted under cause to be serviced, all Mortgage Loans backing Mortgage-backed Securities in accordance with applicable governmental requirements and the Guarantor’s Governing Documents requirements of issuers of Purchase Commitments covering the same; (c) hold all escrow funds collected in respect of Mortgage Loans and this Credit Agreementmortgage loans backing Mortgage-backed Securities in trust, without commingling the same with noncustodial funds, and apply the same for the purposes for which such funds were collected; (Bd) comply in all respects with the proceeds terms and conditions of such withdrawn funds all Master Commitments and Purchase Commitments, and all extensions, renewals and modifications or substitutions thereof or thereto, and deliver or cause to be delivered to the applicable Investor the Mortgage Loans and Mortgagebacked Securities to be sold under each Purchase Commitment not later than three (3) Business Days prior to the items in (A) expiration thereof; and (B)e) maintain, collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything and, upon request, shall make available to the contrary Lender, the Agent or the Security Agent the originals, or copies in this Credit Agreement or any other Loan Document (i) case where the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited original has been delivered to the right Security Agent or to draw down Investor Capital Contributions on such Unfunded Capital an Investor, of its Mortgage Notes, Mortgages, Purchase Commitments, or any Master Commitments, Hedging Contracts and all related Mortgage Loan documents and instruments, and all files, surveys, certificates, correspondence, appraisals, computer programs, tapes, discs, cards, accounting records and other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition information and data relating to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Warehouse Credit Agreement (Mortgage Com Inc), Warehouse Credit Agreement (Mortgage Com Inc)
Collateral. Subject to For the terms purposes of this Agreement, all of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether following property now owned or at any time hereafter acquired by a Grantor or arisingin which a Grantor now has or at any time in the future may acquire any right, title or interests is collectively referred to as the “Collateral”:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Intellectual Property, other than intent-to-use applications until such applications mature into registered trademarks;
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoInventory;
(iij) all Investment Property;
(k) all Letter-of-Credit Rights;
(l) all Vehicles;
(m) the Commercial Tort Claims described on Schedule 13 to the Perfection Certificate or of which the Collateral Agent is notified pursuant to Section 4.10;
(n) to the extent relating determined to be the Unfunded Capital Commitments property of any Grantor, the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any Escrow Account and all guaranties of such Investors’ obligations under interests in items in the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoEscrow Account;
(iiio) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such CollateralSupporting Obligations;
(ivp) each all books and records pertaining to the other property described in this Section 2.1;
(q) all property of any Grantor held by the Collateral AccountAgent (including in its capacity as Escrow Agent under the Escrow Agreement) or any other Secured Party, including but not limited all property of every description, in the possession or custody of or in transit to the Collateral Agent or such Secured Party for any purpose, including safekeeping, collection or pledge, for the account of such Grantor or as to which such Grantor may have any right or power;
(r) all other Goods and all funds personal property of such Grantor, whether tangible or intangible and financial assets on deposit therein or credited theretowherever located; and
(vs) any and to the extent not otherwise included, all proceeds Proceeds of any of the foregoing Collateral includingforegoing; provided, without limitationhowever, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term that “Collateral” shall not include any Portfolio InvestmentExcluded Property and (ii) that if and when any property shall cease to be Excluded Property, such property shall be deemed at all times from and after the date of the Original Security Agreement to constitute Collateral. In addition, notwithstanding any Portfolio Assets of the other provisions set forth in this Article II or anything else contained in this Agreement or any Excluded Proceedsother Loan Document, the amount of all Secured Obligations secured by the Limited Entities’ assets shall not at any time in the aggregate exceed the lesser of (i) $200,000,000 and (ii) 90% of the excess, as reflected on the Limited Entities’ most recent audited financial statements as of the date of determination of the Limited Entities’ liabilities hereunder, of the Limited Entities’ total assets (including any note receivable from an affiliate, but only to the extent that a demand on such note receivable has been made and has been satisfied since the date of the Limited Entities’ most recent audited financial statements) over the Limited Entities’ total liabilities. Notwithstanding anything herein or in any other Loan Document to the contrary, it is hereby acknowledged and agreed that (a) the perfection and priority of the security interests granted by the Limited Entities, (iiib) the term “Collateral” shall not include delivery of any collateral posted or received in connection with Collateral by the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition Limited Entities to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions Agent and (vic) if it would result in an impairment of surplus of the Administrative Agent Limited Entities to the extent that the surplus is less than the amount prescribed by the Vermont Commissioner pursuant to Section 6004(b) of Title 8 of the Vermont Statutes Annotated, the enforcement of rights and remedies of the Secured Parties shall not have any Lien on any property that is not “Collateral”are, except in connection with any Swap Agreementeach case, as provided thereinsubject to the prior consent of the Vermont Commissioner.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Wendy's/Arby's Group, Inc.), Pledge and Security Agreement (Wendy's/Arby's Group, Inc.)
Collateral. Subject Each Grantor hereby pledges, collaterally assigns and transfers to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantAgent, and shall pledge and/or assign by way of security, hereby grants to the Administrative Collateral Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in in, all of the following, whether now owned or at any time hereafter acquired by such Grantor or arisingin which such Grantor now has or at any time in the future may acquire any right, title or interest, wherever located (collectively, the “Collateral”), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of all the Secured Obligations:
(a) all Accounts and accounts receivable;
(b) all Chattel Paper;
(c) all Commercial Tort Claims, including without limitation those listed on Schedule 4 or described in any notice sent pursuant to Section 4.08;
(d) all Commodity Accounts, Deposit Accounts and Securities Accounts;
(e) all Contracts, including, but not limited to each swap contract to which such Grantor is now or may hereafter become a party, in each case as such agreements may be amended, amended and restated, supplemented or otherwise modified from time to time (collectively, the “Assigned Agreements”) and Contract Rights;
(f) all Documents;
(g) all Equipment;
(h) all Financial Assets;
(i) any all Fixtures;
(j) all General Intangibles (including franchise rights);
(k) all Goods;
(l) all Instruments;
(m) all Intellectual Property, Copyright Licenses, Patent Licenses and Trademark Licenses;
(n) all Inventory;
(o) all Investment Property (including, for the avoidance of doubt, all Equity Interests, interest in the limited liability company, or membership interests of each Issuer owned by such Grantor, all of such Grantor’s right to participate in the management of the business and affairs of each such Issuer or otherwise control each such Issuer, and all Unfunded Capital Commitments of the Investorssuch Grantor’s rights as a shareholder or member of each such Issuer);
(p) all Letters of Credit, whether Letter-of-Credit Rights and Payment Intangibles;
(q) all money, cash and Cash Equivalents;
(r) all distributions, monies, fees, payments, compensations and proceeds now or hereafter committed, including but not limited becoming due and payable with respect to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors Pledged Stock and to issue Investor Capital Calls with respect theretothe Pledged Debt, whether payable as profits, distributions, asset distributions, repayment of loans or capital or otherwise;
(iis) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral all other property not otherwise described above (except for any property specifically excluded from any other clause in clause (i) abovethis section, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoproperty specifically excluded from any defined term used in any clause of this section);
(iiit) all insurance payments, proceeds, refunds, and premium rebates (including, without limitation, with respect to fire and credit insurance), whether or not any of such payments, proceeds, refunds, and all agreements, instruments and other documents premium rebates arise out of every kind or description to the extent evidencing or supporting obligations under any of the foregoing and whether or not the Collateral and any Agent is the lender loss payee or loss payee thereof, and all security other payments, proceeds, refunds and other property premium rebates with respect to such any indemnity, warranty or guaranty by reason of loss or damage to or otherwise with respect to the Collateral;
(ivu) each all books, records, and information pertaining to the Collateral Accountand/or to the operation of any Grantor’s business, including but not limited to any and all funds rights of access to such books, records, and financial assets on deposit therein or credited theretoinformation; and
(v) to the extent not otherwise included, all Proceeds, Supporting Obligations and products of, and all income, royalties and other payments now or hereafter due and payable with respect to, any and all proceeds of the foregoing and all collateral security, liens, guarantees, rights, remedies and privileges given by any Person with respect to any of the foregoing foregoing. The Collateral includingAgent is further authorized, without limitationand each Grantor hereby grants the Collateral Agent with all rights, all to file with the United States Patent and Trademark Office, the United States Copyright Office, and any applicable foreign intellectual property office (subject to the limitations set forth in Section 6.12 of the records Credit Agreement), a Copyright Security Agreement, Patent Security Agreement, and Trademark Security Agreement, substantially in the forms attached hereto as Exhibit A, Exhibit B, and Exhibit C, respectively, and such other documents as may reasonably be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Guarantor concerning security interest granted by each Grantor in such Grantor’s Patents, Trademarks and Copyrights, and naming such Grantor or the Grantors as debtors and the Collateral Agent as secured party, and, where required, executed by such Grantor or Grantors. Notwithstanding any of the foregoing Collateralforegoing, no Lien or security interest is hereby granted on any Excluded Asset; excluding (A) provided, further, that if and when any funds properly withdrawn from property shall cease to be an Excluded Asset, a Collateral Account (or that could Lien on and security interest in such property shall be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms deemed granted therein. Each of the Guarantor’s Governing Documents, Grantors agree to purchase Portfolio Investments (other than Permitted Investments deposited cooperate in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or execution of applicable Security Agreements for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinceases to be an Excluded Asset.
Appears in 2 contracts
Sources: Credit Agreement (New Beginnings Acquisition Corp.), Reaffirmation Agreement and Omnibus Amendment Agreement (New Beginnings Acquisition Corp.)
Collateral. Subject to the terms of the applicable Collateral DocumentsThe Obligations, to secure the payment including, without limitation, Rate Management Obligations and performance of the Obligations hereunderBanking Services Obligations, pursuant to a Collateral Account Pledgeshall be secured by (a) valid, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantperfected, and shall pledge and/or assign by way of securityenforceable Liens on all right, to the Administrative Agenttitle, for the benefit and interest of each of the Secured PartiesCredit Parties and each Subsidiary in all capital stock and other Equity Interests held by such Person in each of its Subsidiaries, as applicablewhether now owned or hereafter formed or acquired, a and all Proceeds thereof, and (b) valid, perfected, first prioritypriority and enforceable Liens on all right, security title, and interest of each of the Credit Parties and ▇▇▇▇ each Subsidiary in all personal property, fixtures, and on its interests in the followingreal estate, whether now owned or hereafter acquired or arising:
(i) any , and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toProceeds thereof, in each case subject to Permitted Liens. Holdings will cause 100% of clauses the issued and outstanding Equity Interests of each of direct and indirect Subsidiary of Holdings to be subject at all times to a first priority, perfected Lien and pledge in favor of Agent pursuant to the terms and conditions of this Agreement, and the applicable Collateral Documents or other security documents as Agent shall reasonably request. Notwithstanding the foregoing, the Lien of Agent shall not extend to and Collateral (x), or any asset or property comprising the Collateral) shall not include the following Property (yall of the following being the “Excluded Assets”): (i) and (z)other than Accounts, any and all representationslease, warrantieslicense, covenants and other agreements permit or agreement to which any Credit Party is a party to the extent, but only to the extent, that such a grant would, under the terms of such Investors lease, license, permit or guarantors contained thereinagreement, result in a breach of the terms of, invalidate, or constitute a default under, such lease, license, permit or agreement or to the extent any requirement of law prohibits the grant of a Lien thereon; (ii) any “intent to use” applications for Trademarks for which a statement of use has not been filed and all duties accepted with the United States Patent and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
Trademark Office; (iii) any and all agreements, instruments and other documents those assets as to which Agent determines in its Permitted Discretion the cost of every kind obtaining a Lien therein in favor of Agent or description the perfection thereof are excessive in relation to the extent evidencing or supporting obligations under any of benefit to the foregoing Collateral and any and all security and other property with respect to Lenders afforded by such Collateral;
Lien, (iv) each Collateral Accountequipment owned by a Credit Party that is subject to a purchase money lien or Capitalized Lease permitted hereunder, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any other Intellectual Property if, after giving effect to Sections 9-406, 9-407, 9-408 or 9-409 of the foregoing Collateral includingUCC, without limitationthe grant of a Lien or a security interest in such Intellectual Property would result in the cancellation or voiding of such Intellectual Property. Furthermore, all the Lien of Agent need not be perfected, until otherwise required by the records of Agent or the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited Required Lenders, on vehicles which are subject to a Collateral Account) to certificate of title law (collectively, the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded ProceedsVehicles”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (McBc Holdings, Inc.), Credit and Guaranty Agreement (McBc Holdings, Inc.)
Collateral. (i) Subject to the terms proviso below, each of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements Parent and the other related documents, the Guarantor shall grantBorrower shall, and shall pledge and/or assign by way of securitycause each other Loan Party to, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇▇ in and ▇ ▇▇▇▇ pursuant to the Security Instruments on substantially all of its interests Property located in the following, whether United States now owned or at any time hereafter acquired by it or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committedother Loan Party, including but not limited to (A) all Equipment, Accounts, Chattel Paper, Documents, General Intangibles, Instruments and Inventory (as each such term is defined in the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors UCC), (B) all real property and to issue Investor Capital Calls with respect thereto;(C) the Equity Interests in each Domestic Subsidiary and Foreign Subsidiary; and
(ii) subject to the extent relating proviso below, upon the formation or acquisition of any Significant Domestic Subsidiary or upon any Subsidiary becoming a Significant Domestic Subsidiary after the Initial Availability Date, the Borrower shall promptly:
(A) cause such Significant Domestic Subsidiary to ▇▇▇▇▇ ▇ ▇▇▇▇ pursuant to the Unfunded Capital Commitments Security Instruments on substantially all of its Property located in the Investors constituting Collateral in clause (i) aboveUnited States now owned or at any time hereafter acquired by it, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of Equipment, Accounts, Chattel Paper, Documents, General Intangibles, Instruments, and Inventory (as each such term is defined in the records of UCC);
(B) pledge, or cause the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant appropriate Person to the Credit Agreement if deposited or credited to a Collateral Account) to the extent usedpledge, pursuant to the terms Guaranty and Collateral Agreement or the Pledge Agreement, as applicable, all of the Guarantor’s Governing DocumentsEquity Interests in such Significant Domestic Subsidiary (and, to purchase Portfolio Investments the extent certificated, deliver original stock certificates or other certificates evidencing the capital stock of such entity, together with an appropriate undated stock power for each certificate, duly executed in blank by the registered owner thereof);
(C) cause such Significant Domestic Subsidiary to grant a Mortgage on any real property owned by such Significant Domestic Subsidiary; and
(D) execute and deliver, or cause such Significant Domestic Subsidiary to execute and deliver, such other than Permitted Investments deposited in additional documents and certificates as shall reasonably be requested by the Administrative Agent; and
(iii) subject to the proviso below, upon the formation or credited acquisition of any Foreign Subsidiary or any Domestic Subsidiary that is not a Significant Domestic Subsidiary after the Initial Availability Date, Parent and the Borrower shall promptly:
(A) pledge, or cause the appropriate Person to any such account)pledge, pursuant to the Pledge Agreement, (1) 65% of the voting capital stock and 100% of the non-voting capital stock of each first-tier Foreign Subsidiary that is a CFC (and, to make payments the extent certificated and to the extent that delivery of such certificates is not prohibited due to a Governmental Requirement, deliver original stock certificates or distributions other certificates evidencing 65% of the voting capital stock and 100% of the non-voting capital stock of such entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (2) 100% of the capital stock of each Domestic Subsidiary that is not a Significant Domestic Subsidiary and each Foreign Subsidiary that is not a CFC or a Subsidiary of a CFC (and, to Investors the extent certificated, deliver original stock certificates or other certificates evidencing the capital stock of such entity, together with an appropriate undated stock power for each certificate duly executed in accordance with blank by the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and registered owner thereof); and
(B) execute and deliver, or cause such Foreign Subsidiary or Domestic Subsidiary, as applicable, to execute and deliver, such other additional documents and certificates as shall reasonably be requested by the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding Administrative Agent; provided that the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document clauses (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion), (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, and (iii) the term “Collateral” shall not include any collateral posted require the creation or received perfection of pledges of, security interests in connection with the Swap Agreementsor Mortgages on, (ivA) the Collateral may be Equity Interests in, and any Property of, any ABS Subsidiary, (B) any real property, whether leasehold interests or owned real property, located in any jurisdiction other than the United States, (C) any leasehold interests or any owned real property that has a book value of less than $5,000,000 on an individual basis (provided, however, if in the aggregate, the book value of all real property owned by any Loan Party or Restricted Subsidiary and not subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.a
Appears in 2 contracts
Sources: Credit Agreement (Exterran Corp), Credit Agreement (Exterran Holdings Inc.)
Collateral. Subject to (a) For the terms purposes of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security this Agreement, all assets (other than the related financing statements Equity Interests of and the in Countryplace Acceptance Corporation) of any Grantor (other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, than a first priority, security interest and ▇▇▇▇ in and on its interests in the followingLimited Pledgor), whether now presently existing or owned or hereafter acquired arising or arisingacquired, of any kind or nature and wherever located, in which a Grantor (other than a Limited Pledgor) now has or at any time in the future may acquire any right, title or interests, including all of the following property, is collectively referred to as the “All Assets Collateral”:
(i) all accounts, chattel paper (including electronic chattel paper), deposit accounts, documents (as defined in the UCC), equipment, general intangibles, instruments, inventory, investment property and any Support Obligations related thereto;
(ii) the commercial tort claims described on Schedule II and on any supplement thereto received by the Secured Party pursuant to Section 4.08;
(iii) all Unfunded Capital Commitments property of such Grantor held by the InvestorsSecured Party, whether now including all property of every description, in the custody of or hereafter committedin transit to the Secured Party for any purpose, including safekeeping, collection or pledge, for the account of such Grantor or as to which such Grantor may have any right or power, including but not limited to cash;
(iv) all other goods (including but not limited to fixtures) and personal property of such Grantor, whether tangible or intangible and wherever located;
(v) all books, records and other documentation pertaining to the right other property described in this Section 2.01; and
(vi) to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors the extent not otherwise included, all proceeds of the foregoing;
(b) For the purposes of this Agreement, all of the following property, whether presently existing or owned or hereafter arising or acquired and wherever located, by a Limited Pledgor, or in which a Limited Pledgor now has or at any time in the future may acquire any right, title or interests is collectively referred to issue Investor Capital Calls as the “Limited Collateral” and, together with respect theretothe All Assets Collateral, the “Collateral”:
(i) all Pledged Equity Interests in each Pledged Entity;
(ii) all rights, interests and claims with respect to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral Pledged Equity Interests in clause (i) aboveeach Pledged Entity, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) including under any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors Pledged Collateral Agreement with respect theretoto such Pledged Entity;
(iii) any and all agreementsbooks, instruments records and other documents of every kind or description documentation pertaining to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateraldescribed in this Section 2.01(b);
(iv) each Collateral Accountto the extent not otherwise included, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.foregoing;
Appears in 2 contracts
Sources: Security Agreement (Palm Harbor Homes Inc /Fl/), Security Agreement (Cavco Industries Inc)
Collateral. Subject As collateral security for the payment in full when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations owing by such Obligor, each Obligor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, Agent for the benefit of each the Secured Creditors and, with respect to Shared Collateral, to the Shared Lien Collateral Agent for the benefit of the Secured Parties, Creditors as applicable, hereinafter provided a first priority, security interest in all of such Obligor's right, title and ▇▇▇▇ interest in, to and under the following property, in each case whether tangible or intangible, wherever located, and on its interests in the following, whether now owned by such Obligor or hereafter acquired and whether now existing or arisinghereafter coming into existence (all of the property described in this Section 3 being collectively referred to herein as "Collateral"):
(a) all Accounts:
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents;
(e) all Equipment;
(f) all Fixtures;
(g) all General Intangibles;
(h) all Goods not covered by the other clauses of this Section 3;
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoPledged Shares;
(iij) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveall Instruments, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and including all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoPromissory Notes;
(iiik) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such CollateralIntellectual Property;
(ivl) each Collateral Accountall Inventory;
(m) all Investment Property not covered by other clauses of this Section 3, including but not limited to any all Securities, all Securities Accounts and all funds Security Entitlements with respect thereto and financial assets on deposit therein or credited theretoFinancial Assets carried therein, and all Commodity Accounts and Commodity Contracts;
(n) all Letter-of-Credit Rights;
(o) all commercial tort claims, as defined in Section 9-102(a)(13) of the NYUCC, arising out of the events described in Annex 8;
(p) all other tangible and intangible personal property whatsoever of such Obligor; and
(vq) all Proceeds of any of the Collateral, all Accessions to and substitutions and replacements for, any of the Collateral, all Supporting Obligations with respect to any of the Collateral and all proceeds offspring, rents, profits and products of any of the Collateral, and, to the extent related to any Collateral, all books, correspondence, credit files, records, invoices and other papers (including all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Obligor or any computer bureau or service company from time to time acting for such Obligor), IT BEING UNDERSTOOD, HOWEVER, that (A) in the case of any of the foregoing Collateral includingthat consists of general or limited partnership interests in a general or limited partnership or any Shares in a Joint Venture, without limitationthe security interest hereunder shall be deemed to be created only to the maximum extent permitted under the applicable organizational instrument or joint venture agreement pursuant to which such entity is formed or governed, all (B) in no event shall the security interest granted under this Section 3 attach to (1) any lease, license, contract, property rights or agreement to which such Obligor is a party (or to any of its rights or interests thereunder) if the grant of such security interest therein would constitute or result in either (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Obligor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement (other than to the extent that any such term would be rendered ineffective by Section 9-406, 9-407, 9-408 or 9-409 of the records of Uniform Commercial Code as in effect in the Guarantor concerning any of the foregoing Collateral; excluding relevant jurisdiction), (A2) any funds properly withdrawn from Equipment owned by any Obligor on the date hereof or hereafter acquired that is subject to a Collateral Account (or that could Lien securing Indebtedness permitted to be withdrawn incurred pursuant to Section 7.01(f) of the Credit Agreement if deposited the contract or credited to a Collateral Accountother agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such Equipment and (3) any Fixtures located on premises leased by the Obligors to the extent usedthe pledge thereof or grant of a security interest therein (x) is prohibited by the lease governing such premises or (y) would result in the forfeiture of any Obligor's right, pursuant title or interest therein under applicable law, (C) the security interest created hereby in Shares constituting voting stock of any Issuer that is a Foreign Subsidiary shall be limited to the terms that portion of such voting stock that does not exceed 65% of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any aggregate issued and outstanding voting stock of such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, Issuer and (BD) for the proceeds avoidance of such withdrawn funds (doubt, the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding security interest created hereby is not a conditional or an absolute assignment of any of the foregoing or anything to the contrary in this Credit Agreement Trademark Collateral or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Second Lien Security Agreement (Krispy Kreme Doughnuts Inc), Security Agreement (Krispy Kreme Doughnuts Inc)
Collateral. Subject to For valuable consideration, the terms receipt and sufficiency of the applicable Collateral Documentswhich are hereby acknowledged, and in order to secure the payment and performance of the Obligations hereunder“Guaranteed Obligations” as defined in that certain Continuing Guaranty, pursuant to a Collateral Account Pledgedated as of the date hereof, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign made by way Debtor in favor of security, to the Administrative AgentSecured Party, for the benefit of each itself and Lenders (as the same may be amended, supplemented, modified, extended or restated from time to time, the “Guaranty”), Debtor hereby grants to Secured Party, for the benefit of Secured Party and the Secured Parties, as applicableother Lenders, a first priority, continuing security interest in all of Debtor’s estate, right, title and ▇▇▇▇ interest in and on its interests in to the followingfollowing property, wherever located and whether now owned existing or hereafter acquired arising or arisingacquired:
(i) any accounts, receivables and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
accounts receivable (ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all right to payment for the provision of communications services and related equipment sales and leasing or any other services or goods and health-care-insurance receivables), whether or not earned by performance, and all guaranties and security and instruments therefor, and all goods and rights represented thereby or arising therefrom, including the rights of stoppage in transit, replevin and reclamation; (ii) goods, inventory and supplies (including, without limitation, returned or repossessed goods); (iii) chattel paper (including, without limitation, electronic chattel paper); (iv) instruments (including, without limitation, promissory notes); (v) investment property (including, without limitation, certificated and uncertificated securities, security accounts, securities entitlements, margin accounts, commodity contracts and commodity accounts) letters of credit and letter-of-credit rights (in either case, whether or not the letter of credit is evidenced by a writing); (vi) documents; (vii) fixtures; (viii) general intangibles (including, without limitation, payment intangibles, contracts and contract rights (including, without limitation, construction contracts, subscriber contracts, customer lists and marketing lists, customer service agreements, subscription agreements, franchise agreements, management agreements, rights-of-ways, easements, pole and antennae attachment agreements, transmission capacity agreements, tower attachment leases and public utility contracts), leases of personal property, choses or things in action, litigation rights and resulting judgments, goodwill, patents, trademarks, service marks, websites, domain names and other intellectual property, tax refunds, miscellaneous rights to payment, entitlements and investments, software and computer programs, invoices, books, records and other information relating to or arising out of Debtor’s business, and, to the extent permitted by Applicable Law, all licenses and permits issued by any federal or state governmental body or regulatory authority, including, without limitation, any license issued by the FCC or any PUC); (ix) equipment (including, without limitation, telecommunications and radio transmitting and receiving equipment, antennae, towers, microwave communication equipment, machinery, computers, parts, tools, implements, poles, posts, cross-arms, conduits, ducts, lines (whether underground or overhead or otherwise), wires, cables, exchanges, CODECs, switches (including, without limitation, host switches and remote switches), testboards, amplifiers, racks, frames, motors, generators, batteries, items of central office equipment, pay-stations, protectors, subscriber equipment, instruments, connections and appliances used, useful or acquired for use in the business of Debtor or the operation of Debtor’s properties); (x) supporting obligations; (xi) commercial tort claims; and, (xii) to the extent not covered by the above, all other personal property of Debtor of every type and description, including, without limitation, interests or claims in or under any policy of insurance, tort claims, deposit accounts, deposits, collection accounts, money, and judgments; together with all increases, substitutions, replacements, attachments, accessions and additions to any of the records foregoing, and all products and proceeds of any of the Guarantor concerning foregoing, and rents, offspring, revenues and profits therefrom, including, without limitation, the proceeds of any insurance policies (whether or not Secured Party is the loss payee thereof) and under any indemnity, warranty or guaranty, payable by reason of loss or damage to or otherwise with respect to any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to collectively, the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein).
Appears in 2 contracts
Sources: Security Agreement, Security Agreement
Collateral. Subject (i) Without the consent of any other person, but subject to the terms of the any applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Intercreditor Agreement, the related financing statements applicable Credit Party or Credit Parties and the other related documentsAdministrative Agent and/or Collateral Agent may (in its or their respective sole discretion, the Guarantor shall grant, and shall pledge and/or assign by way of securityor shall, to the Administrative Agentextent required by any Loan Document enter into any amendment or waiver of any Loan Document, or enter into any new agreement or instrument), to effect the granting, perfection, protection, expansion (including to cover additional amounts as secured obligations thereunder) or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of each of the Secured Parties, or as applicablerequired by local law to give effect to, a first priority, or protect any security interest and ▇▇▇▇ in and on its interests in for the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments benefit of the InvestorsSecured Parties, whether now in any property or hereafter committed, so that the security interests therein comply with applicable Requirements of Law (including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;local law).
(ii) Notwithstanding anything in this Agreement or any Security Document to the extent relating to contrary, the Unfunded Capital Commitments Administrative Agent and/or, as applicable, the Collateral Agent may, in its sole discretion, grant extensions of time for the satisfaction of any of the Investors constituting requirements under Sections 5.10 and 5.11 or of any Security Document in respect of any particular Collateral in clause (i) above, (x) or any particular Subsidiary if it determines that the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions satisfaction thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;to such Collateral or such Subsidiary cannot be accomplished without
(iii) The Lenders hereby irrevocably agree that the Liens granted to the Collateral Agent by the Credit Parties on any and all agreementsCollateral shall be automatically released (i) in full, instruments and upon the Payment in Full of the Obligations, (ii) upon the sale or other documents disposition of every kind or description such Collateral to any Person other than another Credit Party, to the extent evidencing such sale or supporting obligations under other disposition is made in compliance with the terms of this Agreement (and the Collateral Agent may rely conclusively on a certificate to that effect provided by any Credit Party upon its reasonable request without further inquiry), (iii) if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or such other percentage of the foregoing Collateral and any and all security and other property Lenders whose consent may be required in accordance with respect to such Collateral;
this Section 10.02), (iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent usedthe property constituting such Collateral is owned by any Guarantor, pursuant to upon the terms release of such Guarantor from its obligations under the Guarantor’s Governing Documents, to purchase Portfolio Investments applicable Guarantee (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds final paragraph of such withdrawn funds (the items in (A) and (BSection 9.10), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition as required to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements effect any sale or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except disposition of Collateral in connection with any Swap Agreementexercise of remedies of the Collateral Agent pursuant to the Security Documents, as provided thereinor (vi) if such assets constitute Excluded Property.
Appears in 1 contract
Collateral. Subject to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementCollectively, the Pledged Notes Receivable, together with all accounts, chattel paper, general intangibles, instruments and investment property related financing statements thereto and the other related documents, the Guarantor shall grantcash and non-cash proceeds thereof, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether all now owned or hereafter acquired or arising:
(i) right, title, and interest of Borrower in and to all Applicable Underlying Loan Collateral for any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committedPledged Notes Receivable, including but not limited to the right following (to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretothe extent applicable):
(a) The Applicable Mortgages;
(iib) First priority Liens in and to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties Encumbered Personal Property, together with the cash and non-cash proceeds thereof, with appropriate non-disturbance language relating to common area furniture, furnishings, equipment, and fixtures;
(c) Absolute and unconditional first assignments of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representationsleases, warrantiessubleases, covenants licenses, concessions, entry fees, and other agreements of such Investors that grant a possessory interest in and to, or guarantors contained thereinthe right to use, any and all duties and obligations of such Investors Mortgaged Real Property, Encumbered Intervals, Encumbered Personal Property, or guarantors thereunder and any and all rights to compel performance and enforce portion thereof (collectively, the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto"Resort Leases");
(iiid) any Absolute and unconditional first assignments of all agreementsof the rents, instruments revenues, income, proceeds, royalties, profits, and other documents amounts payable for using, leasing, licensing, possessing, operating from or in, or otherwise enjoying all or any portion of every kind any Mortgaged Real Property, Encumbered Personal Property, or description to Encumbered Intervals, including, without limitation, damages received upon the extent evidencing or supporting obligations occurrence of a default under any of the foregoing Collateral and any Resort Leases and all security and other property proceeds payable under any policy of insurance covering loss of rents with respect to such Collateralthereto (collectively, the "Resort Income");
(ive) each Collateral AccountAbsolute and unconditional first assignments of all other agreements to which any Applicable Underlying Borrower is or becomes a party or holds any interest and which in any way relate to the use, occupancy, maintenance, or enjoyment of any Mortgaged Real Property, Encumbered Personal Property, or Encumbered Intervals, including but not limited to utility contracts, maintenance agreements, management agreements, service contracts, and any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds agreement guaranteeing the performance of the obligations contained in any of the foregoing Collateral including, without limitationagreements;
(f) First priority assignments of all of Borrower's rights in and to all Plans, all agreements for the furnishing of architectural, engineering, and/or design services, and all construction contracts and other agreements for the furnishing of labor and/or materials in connection with the development and construction of the records Financed Improvements;
(g) First priority assignments of the Guarantor concerning all of Borrower's rights in and to any and all easements, contracts, leasehold interests (whether as lessor or lessee), permits, licenses, and approvals in respect of all or any portion of an Applicable Resort;
(h) First priority Liens in all inventory, supplies, accounts, chattel paper, and general intangibles owned or hereafter acquired by Borrower or any Underlying Borrower, used or useful in connection with, and placed or to be placed on or under any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX InsidersMortgaged Real Property, including but not limited to the right Units contained therein, and the Encumbered Intervals, together with the cash and non-cash proceeds thereof;
(i) First priority Liens in and to draw down Investor Capital Contributions on such Unfunded Capital Commitmentsall documents, instruments, accounts, chattel paper, general intangibles and investment property relating to the Pledged Notes Receivable and the other Collateral, including the cash and non-cash proceeds thereof;
(j) First priority Liens in and to all books, records, reports, computer tapes, computer disks, and software relating to all or any portion of the Collateral;
(k) Extensions, additions, improvements, betterments, renewals, substitutions, and replacements of, for, or to any of the Collateral, wherever located, together with the products, proceeds, issues, rents, and profits thereof and any replacements, additions, or accessions thereto or substitutions thereof, and all rights in or under insurance policies and to the proceeds of any insurance policies covering any of the other Collateral, all rights to unearned or refunded insurance premiums, and the proceeds of any condemnation awards or any claims regarding any of the other Collateral; and
(l) All now owned or hereafter acquired right, title, and interest of Borrower in and to any and all of the collateral for the RFI Receivables Credit Facility and any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets timeshare-related loan or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a credit facility between Lender and Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinan Affiliate of Borrower.
Appears in 1 contract
Collateral. Subject to For the terms purposes of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security this Agreement, the related financing statements all personal property, tangible and the other related documentsintangible, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or at any time hereafter acquired by a Grantor or arising:
(i) in which a Grantor now has or at any and all Unfunded Capital Commitments of time in the Investorsfuture may acquire any right, whether now title or hereafter committedinterests is collectively referred to as the “Collateral”, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral includingwhich term shall include, without limitation, all of the records following:
(a) all accounts;
(b) all inventory, equipment and other goods;
(c) all fixtures;
(d) all documents;
(e) all general intangibles;
(f) all securities accounts and deposit accounts (other than Excluded Deposit Accounts), including Store Accounts, Concentration Accounts, the Cash Collateral Account and all deposits and credits therein;
(g) all investment property; provided, if the grant of a Lien and security interest under this Agreement in investment property consisting of equity interests of an Excluded Foreign Subsidiary of a Grantor would subject a Grantor to a tax on the earnings and profits of such Excluded Foreign Subsidiary under Section 956 of the Guarantor concerning Internal Revenue Code, then, in such event (and only for so long as such tax would be imposed), not more than sixty-five percent (65%) of the voting equity securities and one hundred percent (100%) of the non-voting equity securities of such Excluded Foreign Subsidiary shall be deemed part of the Collateral and subject to the Lien and security interest of the Administrative Agent granted hereby;
(h) all software;
(i) all letters of credit, letter-of-credit rights, instruments, promissory notes, drafts and chattel paper (including electronic chattel paper and tangible chattel paper);
(j) all supporting obligations with respect to any of the foregoing;
(k) all books, records, and information relating to any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant and/or to the Credit Agreement if deposited operation of any Grantor’s business, and all rights of access to such books, records, and information, and all property in which such books, records, and information are stored, recorded and maintained;
(l) all commercial tort claims;
(m) all money or credited other assets of such Grantor, including without limitation all money and assets of such Grantor held by any Secured Party, including all property of every description, in the custody of or in transit to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or Secured Party for any other purpose permitted under purpose, including safekeeping, collection or pledge, for the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds account of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing Grantor or anything as to the contrary in this Credit Agreement which such Grantor may have any right or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiderspower, including but not limited to cash; and
(n) all Leases and Leaseholds;
(o) to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitmentsextent not otherwise included, or any other interests all proceeds of the SOX Insidersforegoing including the proceeds of insurance, if anyall property or money resulting from the Sale of any of the foregoing and all other rights to payment not included in the foregoing; provided, unless so elected by the Guarantor in its discretionhowever, (ii) the term that “Collateral” shall not include any Portfolio InvestmentExcluded Property; and provided, any Portfolio Assets or any Excluded Proceedsfurther, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” if and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on when any property that is not “shall cease to be Excluded Property, such property shall be deemed at all times from and after the date hereof to constitute Collateral.”, except in connection with any Swap Agreement, as provided therein.
Appears in 1 contract
Collateral. Subject As collateral security for the payment in full when due (whether at stated maturity, by acceleration or otherwise) of its Secured Obligations, each Obligor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, Agent for the benefit of each of the Secured Parties, Parties as applicable, hereinafter provided a first priority, security interest in all of such Obligor’s right, title and ▇▇▇▇ interest in, to and under the following property, in each case whether tangible or intangible, wherever located, and on its interests in the following, whether now owned by such Obligor or hereafter acquired and whether now existing or arising:hereafter coming into existence (all of the property described in this Section 4 being collectively referred to herein as “Collateral”):
(ia) any all Accounts, all Chattel Paper, all Commodity Accounts, all Commodity Contracts, all Documents, all General Intangibles, all Instruments (including all Promissory Notes), all Investment Property and all Unfunded Capital Commitments of the InvestorsSecurities not otherwise credited to a Securities Account, whether now or hereafter committed, including but not limited in each case to the right extent constituting Investments or the Proceeds thereof, but excluding any such asset released pursuant to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoSection 10.03(e);
(iib) all Letter-of-Credit Rights where the underlying letter of credit supports any Collateral described in clause (a) of this Section;
(c) all Deposit Accounts and Securities Accounts (including Securities Entitlements with respect thereto and Financial Assets carried therein);
(d) to the extent relating related to any Collateral, all books, correspondence, credit files, records, invoices and other papers (including all tapes, cards, computer runs and other papers and documents in the Unfunded Capital Commitments of possession or under the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, control of such Investors and (z) Obligor or any and all guaranties of computer bureau or service company from time to time acting for such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (xObligor), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(ve) any and all proceeds Proceeds of any of the foregoing Collateral includingCollateral. PROVIDED, without limitationHOWEVER, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding that (A) in no event shall the security interest granted under this Section 4 attach to (i) any funds properly withdrawn from contract, property rights, obligation, instrument or agreement to which an Obligor is a Collateral Account party (or that could be withdrawn pursuant to any of its rights or interests thereunder) if the Credit Agreement if deposited grant of such security interest would constitute or credited to result in either (x) the abandonment, invalidation or unenforceability of any right, title or interest of such Obligor therein or (y) in a Collateral Account) to the extent used, breach or termination pursuant to the terms of the Guarantor’s Governing Documentsof, to purchase Portfolio Investments or a default under, any such contract, property rights, obligation, instrument or agreement (other than Permitted Investments deposited in or credited to the extent that any such accountterm would be rendered ineffective by Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code as in effect in the relevant jurisdiction); (ii) Equity Interests in directly-held Foreign Subsidiaries in excess of 65% of the total outstanding voting Equity Interests of each such Foreign Subsidiary or any Equity Interests in indirectly-held Foreign Subsidiaries, in each case, except to make payments the extent that, in the reasonable determination of the Borrower, such a security interest would not reasonably be expected to result in a materially adverse tax consequence to such Obligor; (iii) any Excluded Account; or distributions to Investors in accordance with the terms hereof or for (iv) any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, Excluded SBIC Investments; and (B) the proceeds of such withdrawn funds (the items in (A) and (B)Obligors, collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected may by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition notice to the Collateral Accounts Agent, exclude from the grant of a security interest provided above in this Section 4, any Special Equity Interests designated by the Borrower in reasonable detail to the Collateral Agent in such notice (it being understood that will not be considered “Collateral” and the Borrower may at any later time rescind any such other accounts shall not be subject designation by similar notice to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinCollateral Agent).
Appears in 1 contract
Sources: Guarantee and Security Agreement (Stellus Capital Investment Corp)
Collateral. Subject As collateral security for the payment in full when due (whether at stated maturity, by acceleration or otherwise), of its Secured Obligations, each Obligor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, Agent for the benefit of each of the Secured Parties, Parties as applicable, hereinafter provided a first priority, security interest in all of such Obligor’s right, title and ▇▇▇▇ in interest in, to and on its interests in under all of such Obligor’s personal property and assets, including the following, in each case whether tangible or intangible, wherever located, and whether now owned by such Obligor or hereafter acquired and whether now existing or arising:
hereafter coming into existence (iall of the property described in this Section 4, other than the property excluded pursuant to the proviso to this Section 4, being collectively referred to herein as “Collateral”): (a) any all Accounts, all Chattel Paper, all Deposit Accounts, all Documents, all General Intangibles (including all Intellectual Property), all Instruments (including all Promissory Notes), all Portfolio Investments, all Pledged Debt, all Pledged Equity Interests, all Investment Property not covered by the foregoing (including all Securities, all Securities Accounts and all Unfunded Capital Commitments Security Entitlements with respect thereto and Financial Assets carried therein, all Commodity Accounts and Commodity Contracts, and, for the avoidance of doubt, all of such Obligor’s interest in the limited liability company or membership interests of each Subsidiary owned by such Obligor, all of such Obligor’s right to participate in the management of the Investorsbusiness and affairs of each such issuer or otherwise control each such Subsidiary, whether now or hereafter committedand all of such Obligor’s rights as a member of each such Subsidiary), all letters of credit and Letter-of-Credit Rights, all Money and all Goods (including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors Inventory and to issue Investor Capital Calls with respect thereto;
Equipment), and all Commercial Tort Claims; (iib) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited related to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitationCollateral, all of the records of the Guarantor concerning any of the foregoing CollateralSupporting Obligations; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Accountc) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited related to any such account)Collateral, to make payments all books, correspondence, credit files, records, invoices and other papers (including all tapes, cards, computer runs and other papers and documents in the possession or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds control of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement Obligor or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited computer bureau or service company from time to the right to draw down Investor Capital Contributions on time acting for such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” Obligor); and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.30
Appears in 1 contract
Sources: Guarantee, Pledge and Security Agreement (Barings BDC, Inc.)
Collateral. Subject to the terms of the applicable The Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a under this Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arisingAgreement is:
(ia) any all of the personal property, goods, machinery, equipment, supplies, fixtures, furniture, building and other materials of every nature whatsoever and all Unfunded Capital Commitments personal property of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
each Debtor (ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing property and similar or after-acquired property included as Collateral and any and all security and other property with respect under Section 2(g) below being hereinafter referred to such Collateral;as "EQUIPMENT"). 2
(ivb) each Collateral Accountall of Debtors' accounts and accounts receivable, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all rights to payment for goods sold or leased or for services rendered which are not evidenced by an instrument or chattel paper, all other present or future rights for money due or to become due, all of the records chattel paper, instruments, promissory notes, and general intangibles evidenced by an instrument or chattel paper, all other present or future rights for money due or to become due, all of the Guarantor concerning chattel paper, instruments, promissory notes, and general intangibles for money due or to become due of any kind, in each case whether now existing or hereafter arising and whenever arising and whether or not earned by performance (collectively, the "RECEIVABLES"), other general intangibles, documents of title, warehouse receipts, leases, deposit accounts, money, tax refund claims, partnership interests, indemnification and other similar claims and contract rights: including, without limitation, franchises, certificates, stock, and all rights in, to and under all security agreements, mortgages, deeds of trust, guarantees, leases and other agreements or contracts securing or otherwise relating to any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms all of the Guarantor’s Governing Documentsforegoing property, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account)including, to make payments or distributions to Investors in accordance with without limitation, the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit AgreementReceivables, and similar or after-acquired property included as Collateral under Section 2(f) below being hereinafter referred to as "INTANGIBLES");
(Bc) the proceeds all inventory in all of such withdrawn funds (the items in (A) and (B)its forms, collectively “Excluded Proceeds”). Notwithstanding the foregoing wherever located now or anything to the contrary in this Credit Agreement or any other Loan Document hereafter existing including, but not limited to, (i) the term “Collateral” shall not include the Unfunded Capital Commitments all goods held by any Debtor for sale or lease or to be furnished under contracts of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, service or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretionleased or furnished, (ii) all raw materials, work in process, finished goods, and materials used or consumed in the term “Collateral” shall not include manufacture, packing, shipping, advertising, selling, leasing, furnishing or production of such inventory or otherwise used or consumed in any Portfolio Investment, any Portfolio Assets or any Excluded ProceedsDebtor's business, (iii) the term “Collateral” shall not include goods in which any collateral posted Debtor has an interest in mass or received in connection with the Swap Agreementsa joint or other interest or right of any kind, (iv) the Collateral may be subject goods which are returned to Permitted Liens, or repossessed by any Debtor and (v) a Borrower all additions and accessions thereto and replacements thereof (all such inventory, accessions and products being the "Inventory");
(d) all of the trademarks and service marks now held or hereafter acquired by any Debtor, which are registered in the Guarantor may maintain United States Patent and Trademark Office or in any similar office or agency of the United States or any state thereof or any political subdivision thereof and any application for such trademarks and service marks, as well as any unregistered marks used by any Debtor in the United States and trade dress including logos, designs, trade names, business names, fictitious business names and other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except business identifiers in connection with which any Swap Agreementof these registered or unregistered marks are used in the United States ("MARKS") together with the registration and right to renewals thereof, and the goodwill of the business of each Debtor symbolized by the Marks and all licenses associated therewith;
(e) all United States copyrights which any Debtor now or hereafter has registered with the United States Copyright Office, as provided therein.well as any application for a United States copyright registration now or hereafter made with the United States Copyright Office by any Debtor ("COPYRIGHTS") or United States patent to which any Debtor now or hereafter has title and any divisions or continuations thereof, as well as any application for a United States patent now or hereafter made by any Debtor, and all reissues, renewals or extension thereof;
Appears in 1 contract
Collateral. Subject to To secure the terms full and complete payment and ---------- performance of the applicable Collateral DocumentsObligations, Borrower shall, and, to secure the payment and performance Subsidiary Guaranty, Borrower shall cause each Subsidiary of Borrower, other than the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of securityForeign Subsidiaries, to the grant to Administrative Agent, for the benefit of each of the Secured Parties, as applicableAgents and the Lenders, a perfected (except, in the case of immaterial items of Collateral perfection against which requires extraordinary filings or other actions, where not required by Administrative Agent in the exercise of its absolute discretion), first prioritypriority Lien on all of its right, security title, and interest and ▇▇▇▇ in and on its interests in to the followingfollowing Property, whether now owned or hereafter acquired or arisingacquired, pursuant to the Security Documents:
(ia) any and all Unfunded Capital Commitments Stock of each Subsidiary of Borrower other than Foreign Subsidiaries (whether present or future), owned as of the Investors, whether now Closing Date or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretothereafter acquired by Borrower or any Domestic Subsidiary of Borrower;
(iib) to the extent relating to the Unfunded Capital Commitments 65% of the Investors constituting Collateral in clause shares of each class of Capital Stock of each Foreign Subsidiary (iwhether present or future) abovethat is a direct, (x) the Constituent Documentswholly-owned Subsidiary of Borrower or of a Domestic Subsidiary of Borrower, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any owned as of the foregoing Collateral and any and all security and other property with respect to Closing Date or thereafter acquired by Borrower or such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretoDomestic Subsidiary; and
(vc) any and all proceeds other Property of any Borrower and, for purposes of securing the Subsidiary Guaranty, each Subsidiary of Borrower, other than the Foreign Subsidiaries, owned as of the foregoing Collateral Closing Date or thereafter acquired, including, without limitation, all accounts (including, without limitation, Receivables), inventory (including, without limitation, Inventory), equipment, furniture, fixtures, contract rights, general intangibles, documents, instruments, investment property, chattel paper, permits, Intellectual Property, intercompany Debt, licenses, and material real Property, excluding only the Installment Note. Except as set forth in Schedule 7.1, Borrower covenants that none of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could Capital ------------- Stock to be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent usedpledged, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for this Section 7.1 shall be subject to any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement----------- transfer restrictions, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitmentsshareholders' agreement, or any other interests of the SOX Insidersrestriction except for such restrictions under applicable securities laws and such restrictions, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in as may be reasonably acceptable to Administrative Agent. In connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts and in addition to the Collateral Accounts that will not be considered “Collateral” foregoing, Borrower and its Subsidiaries shall execute and/or deliver such other accounts shall not be subject to control agreements or other restrictions Security Documents and further agreements, documents, and instruments (viincluding, without limitation, stock certificates, stock powers, and financing statements) the as Administrative Agent may reasonably request in order for it to obtain and maintain the Secured Parties shall not have any Lien on any property that is not “Collateral”perfected, except first priority Liens to be granted in connection accordance with any Swap Agreement, as provided therein.this Section 7.1. -----------
Appears in 1 contract
Collateral. Subject to To secure the terms full and complete payment and ---------- performance of the applicable Collateral DocumentsObligations, Borrower shall, and, to secure the payment and performance Subsidiary Guaranty, Borrower shall cause each Subsidiary of Borrower, other than the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of securityForeign Subsidiaries, to the grant to Administrative Agent, for the benefit of each of the Secured Parties, as applicableAgents and the Lenders, a perfected (except, in the case of immaterial items of Collateral perfection against which requires extraordinary filings or other actions, where not required by Administrative Agent in the exercise of its absolute discretion), first prioritypriority Lien on all of its right, security title, and interest and ▇▇▇▇ in and on its interests in to the followingfollowing Property, whether now owned or hereafter acquired or arisingacquired, pursuant to the Security Documents:
(ia) any and all Unfunded Capital Commitments Stock of each Subsidiary of Borrower other than Foreign Subsidiaries (whether present or future), owned as of the Investors, whether now Closing Date or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretothereafter acquired by Borrower or any Domestic Subsidiary of Borrower;
(iib) to the extent relating to the Unfunded Capital Commitments 65% of the Investors constituting Collateral in clause shares of each class of Capital Stock of each Foreign Subsidiary (iwhether present or future) abovethat is a direct, (x) the Constituent Documentswholly-owned Subsidiary of Borrower or of a Domestic Subsidiary of Borrower, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any owned as of the foregoing Collateral and any and all security and other property with respect to Closing Date or thereafter acquired by Borrower or such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretoDomestic Subsidiary; and
(vc) any and all proceeds other Property of any Borrower and, for purposes of securing the Subsidiary Guaranty, each Subsidiary of Borrower, other than the Foreign Subsidiaries, owned as of the foregoing Collateral Closing Date or thereafter acquired, including, without limitation, all accounts (including, without limitation, Receivables), inventory (including, without limitation, Inventory), equipment, furniture, fixtures, contract rights, general intangibles, documents, instruments, investment property, chattel paper, permits, Intellectual Property, intercompany Debt, licenses, and material real Property, excluding only the Installment Note. Except as set forth in Schedule 7.1, Borrower covenants that none of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could Capital ------------- Stock to be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent usedpledged, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for this Section 7.1 shall be subject to ----------- any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreementtransfer restrictions, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitmentsshareholders' agreement, or any other interests of the SOX Insidersrestriction except for such restrictions under applicable securities laws and such restrictions, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in as may be reasonably acceptable to Administrative Agent. In connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts and in addition to the Collateral Accounts that will not be considered “Collateral” foregoing, Borrower and its Subsidiaries shall execute and/or deliver such other accounts shall not be subject to control agreements or other restrictions Security Documents and further agreements, documents, and instruments (viincluding, without limitation, stock certificates, stock powers, and financing statements) the as Administrative Agent may reasonably request in order for it to obtain and maintain the Secured Parties shall not have any Lien on any property that is not “Collateral”perfected, except first priority Liens to be granted in connection accordance with any Swap Agreement, as provided therein.this Section 7.1. -----------
Appears in 1 contract
Collateral. Subject Each Security Agreement, when executed, by all parties thereto (i) creates in favor of the Collateral Agent (for the benefit of the Lenders and Agents) a legal, valid, binding and (subject, with respect to perfection against third parties, to the terms following sentence) enforceable security interest (provided that perfection against third parties is addressed in the following sentence) in the Collateral described therein in which the applicable Credit Party now has rights and proceeds thereof, and (ii) will create in favor of the Collateral Agent (for the benefit of the Lenders and Agents) a legal, valid, binding and enforceable security interest (provided that perfection against third parties is addressed in the following sentence) in the Collateral described therein in which the applicable Credit Party hereafter acquires rights upon such Credit Party’s acquisition of rights therein, in each case, subject to applicable insolvency, bankruptcy, reorganization, moratorium, fraudulent transfer and other laws now or hereafter in effect generally affecting rights of creditors (including with respect to specific performance) and principles of equity and to the discretion of a court before which any procedure may be brought, whether considered in a proceeding in equity or in law and to the discretion of the court before which any proceeding therefore may be brought. Such security interest will constitute, upon execution thereof by all parties thereto (or, as applicable, upon the applicable Credit Party’s acquisition of rights in the Collateral Documentssubject thereto), to secure a fully perfected Lien on all right, title and interest of the payment Credit Parties in such Collateral and performance of proceeds thereof, as security for the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements in each case prior and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, superior to the Administrative Agentrights of any other Person (except, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the followingcase of all Collateral, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to Permitted Liens to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) set forth above); provided, (x) the Constituent Documentshowever, (y) the Subscription Agreements and Side Letters, if any, of that such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but security interest shall not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding be perfected until (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant in the case of the certificated securities, the time at which such certificated securities are delivered to the Credit Agreement if deposited Collateral Agent or credited to a financing statements in appropriate form are filed in the appropriate offices, (B) in the case of cash, the time at which the Collateral AccountAgent acquires possession thereof, (C) to in the extent usedcase of Deposit Accounts, pursuant to Securities Accounts, Commodities Accounts and letter-of-credit rights not constituting Supporting Obligations, the terms time at which the Collateral Agent acquires “control” thereof, as described in Section 9-104, 9-106 and 9-107 (as applicable) of the Guarantor’s Governing DocumentsUCC, to purchase Portfolio Investments (D) in the case of intellectual property, the time at which each intellectual property security agreement is filed in the United States Patent and Trademark Office or the United States Copyright Office, respectively, together with financing statements in appropriate form filed in the appropriate offices, (E) in the case of all other than Permitted Investments deposited personal property Collateral described therein, the time at which financing statements in or credited to any such account), to make payments or distributions to Investors appropriate form are filed in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreementappropriate offices, and (BF) in the proceeds case of such withdrawn funds (all real property Collateral, the items time at which the applicable deed of trust or mortgage is recorded in (A) and (B), collectively “Excluded Proceeds”)the appropriate filing office therefor. Notwithstanding the foregoing or anything to the contrary Nothing in this Credit Agreement or any other Loan Document (i) the term “Collateral” Security Agreement shall not include the Unfunded Capital Commitments of the SOX Insidersbe given effect as requiring that any Borrower make any filing, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, registration or undertake any other interests action to create or perfect any security interest under the laws of any jurisdiction other than the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio InvestmentUnited States, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower state thereof or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinDistrict of Columbia.
Appears in 1 contract
Sources: Credit Agreement (NRG Energy, Inc.)
Collateral. Subject to the terms of the applicable Collateral Documents, to To secure the full and complete payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements Borrowers shall execute and deliver or cause to be executed and delivered the documents described below covering the property described in this Section 5.1 (which, together with any other related documentsproperty which may now or hereafter secure the Obligations or any part thereof, is sometimes herein called the Guarantor "Collateral"):
(a) Each Borrower shall grant, and shall pledge and/or assign by way of security, grant to the Administrative Agent, Agent for the benefit of each of itself and the Secured Parties, as applicable, Banks a first priority, priority (subject only to Permitted Liens) security interest in all of its accounts, accounts receivable, equipment, machinery, fixtures, inventory, chattel paper, documents, instruments, and ▇▇▇▇ in and on its interests in the followinggeneral intangibles, whether now owned or hereafter acquired or arising:
acquired, and all products and proceeds thereof, pursuant to the Borrower Security Agreement; provided, such security interest shall not attach to (i) any and all Unfunded Capital Commitments funds in possession of the InvestorsBorrower constituting trust funds owned by third parties, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) capital lease obligations and property subject to a purchase money security interest to the extent relating it is subject to a Permitted Lien, which Permitted Lien prohibits the Unfunded Capital Commitments imposition of the Investors constituting Collateral in clause (i) aboveother Liens, (xiii) the Constituent Documentsoperating leases, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants licenses and other agreements (but excluding oil and gas leases) entered in the ordinary course of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description business to the extent evidencing such agreements prohibit assignment or supporting obligations under any the imposition of the foregoing Collateral and any and all security and other property with respect to such Collateral;
Liens, (iv) each Collateral Accountall permits, including but not limited authorizations, registrations, consents, approvals, waivers, exceptions, variances, claims, orders, judgments and decrees, licenses, exemptions, franchises, registrations, publications, filings, notices to and declarations of, or with, any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral Governmental Authority, including, without limitation, all construction, siting, environmental and operating permits and licenses that are required for the use and operation of the records of the Guarantor concerning Pipeline Assets, to that extent that any of the foregoing Collateral; excluding above would, by its terms or operation of law, become void, voidable, terminable or revocable if mortgaged, pledged or assigned or if a security interest therein were granted hereunder, (Av) any funds properly withdrawn from all licenses, permits, authorizations, registrations and exemptions relating to the handling, treatment, disposal and discharge of pollutants, contaminants and environmentally sensitive materials and substances which are not assignable by law or in accordance with their terms, (vi) leases, licenses and other agreements relating to computer hardware and software which are not assignable by law or in accordance with their terms, (vii) contracts, contract rights, agreements and other instruments including, without limitation, the Transportation Agreement (Marketing) and the Interconnect Agreement, which are not assignable by law or in accordance with their terms, and (viii) all other consents, licenses and permits which are not assignable by law or in accordance with their terms.
(b) Each Borrower shall grant to the Agent for the benefit of itself and the Banks and confirm its prior grant of a Collateral Account (or that could be withdrawn Lien on all of its real property, Hydrocarbons and all interests therein and proceeds thereof pursuant to the Credit Agreement if deposited or credited to a Collateral AccountDeeds of Trust.
(c) Castle shall pledge and grant to the extent usedAgent for the benefit of itself and the Banks a first priority security interest in (i) all of the outstanding capital stock of Exploration and each of the General Partners and the Limited Partners, and all products and proceeds thereof, pursuant to the terms Castle Pledge Agreement. The Agent shall retain possession in Louisiana of the Guarantor’s Governing Documentscertificates evidencing the capital stock of such Subsidiaries, together with stock powers duly executed in blank by Castle.
(d) Each of the General Partners shall pledge and grant to purchase Portfolio Investments (other than Permitted Investments deposited the Agent for the benefit of itself and the Banks a first priority security interest in or credited to any such account), to make payments or distributions to Investors its general partnership interest in accordance with the terms hereof or relevant Borrower for any other purpose permitted under which it is the Guarantor’s Governing Documents and this Credit Agreementgeneral partner, and (B) the all products and proceeds of such withdrawn funds (the items in (A) and (B)thereof, collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything pursuant to the contrary in this Credit Agreement or any other Loan Document GP Pledge Agreement.
(ie) the term “Collateral” shall not include the Unfunded Capital Commitments Each of the SOX InsidersLimited Partners shall pledge and grant to the Agent for the benefit of itself and the Banks a first priority security interest in its limited partnership interest in the relevant Borrower for which it is the limited partner, and all products and proceeds thereof, pursuant to the LP Pledge Agreement.
(f) Exploration shall pledge and grant to the Agent for the benefit of itself and the Banks a first priority security interest in Exploration's entire limited partnership interest in Deerlick Creek Field Limited Partnership and all products and proceeds thereof pursuant to the Exploration Pledge Agreement.
(g) Castle shall grant to the Agent for the benefit of itself and the Banks and confirm its prior grant of a Lien on the Mortgaged Properties owned by Castle pursuant to the Castle Mortgages and the Castle Deeds of Trust.
(h) The Borrowers, Castle, the General Partners and the Limited Partners shall execute and cause to be executed such further documents and instruments, including but not limited to without limitation, Uniform Commercial Code financing statements, as the right to draw down Investor Capital Contributions on such Unfunded Capital CommitmentsAgent, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its sole discretion, (ii) deems necessary or desirable to evidence and perfect its liens and security interests in the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 1 contract
Sources: Loan Agreement (Castle Energy Corp)
Collateral. Subject to the terms of the applicable Collateral Documents, to To secure the full and complete payment and performance of the Obligations hereunderObligation, and all other indebtedness existing or hereafter arising of Borrower to Lender pursuant to a Collateral Account Pledgethe Loan Papers, Borrower grants and conveys to, and creates in favor of, Lender, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantperfected, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, priority security interest and Lien in the following securities, assets, and properties now or hereafter owned by Borrower, or in which Borrower has a legal or beneficial interest (collectively, the "Collateral"), all as more particularly described in the Collateral Documents but at all times subject to the limitations set forth in Section 5.9: (a) all shares of capital stock of Communications now or hereafter owned by Borrower other than the Released Shares (on the Closing Date, such shares equaling 11,066,540 shares of the capital stock of Communications), including, without limitation (i) 9,066,540 shares of the Class B Common Stock, (ii) all shares of Class A Common Stock now or hereafter owned by Borrower, including all such shares into which such shares of Class B Common Stock of Communications may be converted, and (iii) without limiting the foregoing, 2,000,000 shares of Class A Common Stock, including the ▇▇▇▇▇▇ Optioned Stock, (b) all shares of capital stock (whether common or preferred) of Logix Enterprises now or hereafter owned by Borrower, all other securities or instruments received by Borrower as a result of loans to, or investments in Logix Enterprises or Logix Communications, and any securities, notes, or other instruments issued as a result of the bankruptcy reorganization of Logix Enterprises or Logix Communications; and all other securities or instruments received by Borrower as a result of loans to, or investments in, Logix Enterprises or Logix Communications, (c) all of Borrower's right, title, and interest now or hereafter in, under, or arising from or related to all of Borrower's membership interests and/or partnership interests in and on its interests in to Portland and Memorial Two, L.L.C., ▇▇▇▇▇▇ Parkway, L.L.C., Paradise Restaurant Group, L.L.C. , Two D. Ranch, L.L.C., Cheyenne Stables, L.L.C., ▇▇▇▇▇▇ Ranch Limited Liability Company, and Associated TTI Limited Partnership, (d) all of Borrower's right, title, and interest now or hereafter in, under, or arising from the followingStockholder Agreement, whether (e) all of Borrower's right, title, and interest now or hereafter in, under, or arising from the ▇▇▇▇▇▇ Purchase Documents, (f) all accounts, cash, cash equivalent assets, and other assets constituting, in, or represented by any Investment Assets, (g) all other assets now owned or hereafter acquired or arising:
(i) any by Borrower, other than the Released Shares and all Unfunded Capital Commitments of the Investorscash, whether now or hereafter committedsecurities, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveRights, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property distributed to or received by Borrower with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap AgreementsReleased Shares (collectively, the "Released Shares Property"), and (ivh) all proceeds, products, Distributions, substitutions, and replacements on, of, or for all or any of the Collateral may be subject to Permitted Liensforegoing, (v) a Borrower excluding the Released Shares Property. Notwithstanding any provision in this Agreement or the Guarantor may maintain other bank accounts or securities accounts in addition Loan Papers to the Collateral Accounts that will contrary, Borrower shall have the right to use fee and expense reimbursements (but not be considered “Collateral” Distributions on account of loans or investments) received as a result of the bankruptcy reorganization of Logix Enterprises solely for the payment of past-due fees and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinexpenses of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP.
Appears in 1 contract
Collateral. Subject (a) All right, title, and interest of Borrower in and to the terms of Mortgaged Real Property as described in the applicable Collateral Documents, to secure the payment Resort Mortgage;
(b) Absolute and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements unconditional first priority Liens and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ interests in and on its interests in the following, whether to all now owned or hereafter acquired right, title, and interest of Borrower in and to the Encumbered Intervals, together with all appurtenant rights and interests, including but not limited to appurtenant rights and interests in and to the Common Areas and Common Furnishings and all easement, license, and use rights in and to all facilities and amenities available for the use and enjoyment of Purchasers as described in the Timeshare Documents;
(c) Absolute and unconditional first priority Liens and security interests in and to any and all now owned or arising:hereafter acquired right, title, and interest of Borrower in and to the Encumbered Personal Property, together with the cash and non-cash proceeds thereof;
(d) Absolute and unconditional first priority collateral assignments in and pledges of all now owned or hereafter acquired right, title, and interest of Borrower in and to all Pledged Notes Receivable, together with all accounts, chattel paper, and general intangibles related thereto and the cash and non-cash proceeds thereof;
(e) An absolute and unconditional first priority collateral assignment of any and all leases, subleases, licenses, concessions, entry fees, and other agreements that grant a possessory interest in and to, or the right to use, any Mortgaged Real Property, Encumbered Intervals, Encumbered Personal Property, or any portion thereof (collectively, the "Resort Leases");
(f) An absolute and unconditional first priority collateral assignment of all of the rents, revenues, income, proceeds, royalties, profits, and other amounts payable for using, leasing, licensing, possessing, operating from or in, or otherwise enjoying all or any portion of any Mortgaged Real Property, Encumbered Personal Property, or Encumbered Intervals, including, without limitation, that generated from hotel, restaurant, bar, or spa operations, damages received upon the occurrence of a default under any of the Resort Leases, and all proceeds payable under any policy of insurance covering loss of rents with respect thereto (collectively, the "Resort Income");
(g) An absolute and unconditional first priority collateral assignment of all other agreements to which Borrower or any Affiliate thereof is or becomes a party or holds any interest and which in any way relate to the design, construction, renovation, use, occupancy, maintenance, operation, or enjoyment of any Mortgaged Real Property, Encumbered Personal Property, or Encumbered Intervals, including but not limited to construction contracts, subcontractors' agreements, architects' contracts, utility contracts, maintenance agreements, management agreements, service contracts, employment agreements, payment and performance bonds, and any agreement guaranteeing the performance of the obligations contained in any of the foregoing agreements;
(h) An absolute and unconditional first priority collateral assignment of Borrower's entire right, title, and interest in and to all Plans, all agreements for the furnishing of architectural, engineering, and/or design services, and all construction contracts and other agreements for the furnishing of labor and/or materials in connection with the development and construction of all or any portion of the Resort;
(i) An absolute and unconditional first priority collateral assignment of all now owned or hereafter acquired right, title, and interest of Borrower in and to any and all Unfunded Capital Commitments easements, contracts, leasehold interests (whether as lessor or lessee), permits, licenses, franchises, and approvals in respect of all or any portion of the InvestorsResort;
(j) First priority Liens and security interests in and to all inventory, whether supplies, accounts, chattel paper, and general intangibles now owned or hereafter committedacquired by Borrower or any Affiliate thereof, used or useful in connection with, and placed or to be placed on or under any of the Mortgaged Real Property, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors Units contained therein, and to issue Investor Capital Calls the Encumbered Intervals, together with respect theretothe cash and non-cash proceeds thereof;
(iik) First priority Liens and security interests in and to the extent all documents, instruments, accounts, chattel paper, and general intangibles relating to the Unfunded Capital Commitments of Pledged Notes Receivable and the Investors constituting Collateral in clause (i) aboveother Collateral, (x) including the Constituent Documents, (y) the Subscription Agreements cash and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretonon-cash proceeds thereof;
(iiil) First priority Liens and security interests in and to all books, records, reports, computer tapes, computer disks, and software relating to all or any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any portion of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(ivm) each Collateral AccountAbsolute and unconditional first priority collateral assignments of all rights, including but not limited powers, privileges, benefits, and interests granted or conferred upon Borrower, as "developer" or "declarant," pursuant to the Condominium Declaration, the Timeshare Declaration, and the Condominium Association's and Timeshare Association's respective bylaws;
(n) Extensions, additions, improvements, betterments, renewals, substitutions, and replacements of, for, or to any of the other Collateral, wherever located, together with the products, proceeds, issues, rents, and profits thereof and any replacements, additions, or accessions thereto or substitutions thereof, and all rights in or under insurance policies and to the proceeds of any insurance policies covering any of the other Collateral, all rights to unearned or refunded insurance premiums, and the proceeds of any condemnation awards or any claims regarding any of the other Collateral; and
(o) All now owned or hereafter acquired right, title, and interest of Borrower in and to any and all funds collateral for the Timeshare Receivables Purchase Facility, the Timeshare Construction Credit Facility, the Timeshare Receivables Hypothecation Facility, the Bridge Loan Credit Facility, and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents timeshare-related loan or credit facility between Lender and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement Borrower or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments Affiliate of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinBorrower.
Appears in 1 contract
Collateral. Subject (a) Each Loan Party shall at all times keep the Collateral, the Intellectual Property and all other property and assets used in the Loan Parties’ business or in which the Loan Parties now or hereafter hold any interest free and clear from any Liens whatsoever (except for Permitted Liens).
(b) No Loan Party shall agree with any Person other than Agent or Lender not to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, encumber its property (other than Intellectual Property) other than pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements (i) this Agreement and the other related documentsLoan Documents, the Guarantor shall grant(ii) any agreements governing any Permitted Indebtedness, (iii) any Permitted Lien or any document or instrument governing any Permitted Lien, (iv) customary restrictions and shall pledge and/or assign by way of security, conditions contained in any agreement relating to the Administrative Agentsale of any property permitted under Section 7.08, for (v) customary restrictions and conditions contained in agreements governing joint ventures or strategic alliances in the benefit ordinary course of each business, (vi) agreements of any Subsidiary existing at the time such Person became a Subsidiary (and amendments or modifications thereto that do not materially expand the scope thereof); (vii) agreements existing as of the Secured PartiesClosing Date (and amendments or modifications thereto that do not materially expand the scope thereof); and (viii) customary provisions regarding confidentiality or restricting assignments, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests pledges or transfers of any agreement entered into in the followingordinary course of business.
(c) No Loan Party shall enter into or suffer to exist or become effective any agreement that prohibits or limits the ability of any Loan Party to create, incur, assume or suffer to exist any Lien upon any of its Intellectual Property, whether now owned or hereafter acquired or arising:
acquired, to secure its obligations under the Loan Documents to which it is a party other than pursuant to (i) any this Agreement and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretionDocuments, (ii) the term “Collateral” shall not include any Portfolio Investmentagreements governing any purchase money Liens or capital lease obligations otherwise permitted hereby (in which case, any Portfolio Assets prohibition or any Excluded Proceedslimitation shall only be effective against the assets financed thereby), (iii) customary restrictions on the term “Collateral” shall not include any collateral posted assignment, sublicense or received in connection with the Swap Agreementssublease of leases, licenses and other agreements regarding confidentiality, (iv) customary restrictions on Liens in licensing or collaboration agreements relating to such Intellectual Property provided that such restrictions do not prohibit the Collateral may be subject Liens granted to Permitted Liensthe Agent pursuant to the Loan Documents, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts customary restrictions and conditions contained in addition any agreement relating to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and sale of any property permitted under Section 7.08, (vi) customary restrictions and conditions contained in agreements governing joint ventures or strategic alliances in the Administrative Agent ordinary course of business, (vii) agreements of any Subsidiary existing at the time such Person became a Subsidiary (and amendments or modifications thereto that do not materially expand the Secured Parties scope thereof); and (viii) agreements existing as of the Closing Date (and amendments or modifications thereto that do not materially expand the scope thereof) (other than shrink-wrap software licenses) and listed on Exhibit E to the Disclosure Letter; and (ix) any agreements governing Permitted Subordinated Debt.
(d) Each Loan Party shall, and shall not have cause its Subsidiaries to, use commercially reasonable efforts to protect and defend title to its assets from and against all Persons claiming any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereininterest adverse to such Loan Party or Subsidiary.
Appears in 1 contract
Sources: Loan and Security Agreement (Myovant Sciences Ltd.)
Collateral. Subject The Pledgor grants to the terms Pledgee a continuing, specific and fixed assignment, transfer, mortgage, charge and security interest in the following (hereinafter collectively, the "COLLATERAL"):
(a) All of the applicable Collateral Documents, to secure Shares of common stock of JRS issued or registered in the payment and performance name of the Obligations hereunderPledgor, pursuant to owned beneficially and of record by the Pledgor and made a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantpart hereof, and shall pledge and/or assign by way of securityall cash, bonds, dividends, other securities, instruments, rights and other property at any time and from time to the Administrative Agenttime received or receivable in respect thereof or in exchange for all or any part thereof, for the benefit of each of the Secured Partiesincluding without limitation, as applicabledividends, a first prioritywarrants, security interest rights to subscribe, conversion rights, liquidating dividends and ▇▇▇▇ in other share rights, and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of event the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under Pledgor receives any of the foregoing Collateral foregoing, the Pledgor acknowledges that the same shall be received IN TRUST for the Pledgee and agrees immediately to deliver the same to the Pledgee in original form of receipt, together with any and all security and powers of attorney, assignments, endorsements or other property with documents or instruments as the Pledgee may reasonably request to establish, protect or perfect the Pledgee's interest in respect to of such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(vb) Subject to section 8.1(b), all other property hereafter delivered to the Pledgee (or any and all proceeds agent or bailee holding on behalf of the Pledgee) by the Pledgor in substitution for or in addition to any of the foregoing Collateral includingforegoing, all certificates and instruments representing or evidencing such other property and all cash, dividends, other securities, instruments, rights and other property at any time and from time to time received or receivable in respect thereof or in exchange for all or any part thereof, including without limitation, subject to section 8.1(b), dividends, warrants, rights to subscribe, conversion rights, liquidating dividends and other share rights, and in the event the Pledgor receives any of the foregoing, the Pledgor acknowledges that the same shall be received IN TRUST for the Pledgee and agrees immediately to deliver the same to the Pledgee in original form of receipt, together with any powers of attorney, assignments, endorsements or other documents or instruments as the Pledgee may request to establish, protect or perfect the Pledgee's interest in respect of such Collateral; and
(c) All proceeds of all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 1 contract
Sources: Security Agreement (Securities) (3-D Geophysical Inc)
Collateral. Subject to the terms of the applicable Collateral Documents, to To secure the full and complete payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements and the other related documents, the Guarantor shall grantBorrower will, and shall pledge and/or assign by way will cause each Subsidiary of securitythe Borrower to, grant to the Administrative Agent, Agent for the benefit of each the Administrative Agent and the Lenders a perfected, first priority Lien on all of the Secured Partiesright, as applicable, a first priority, security title and interest of the Borrower and ▇▇▇▇ the Subsidiaries of the Borrower in and on its interests to all of their Properties (as more specifically described in the followingSecurity Documents) and on all of the right, title and interest of Holdings in and to all Capital Stock of the Borrower and intercompany Debt owed to or held by Holdings and the Rights-of-Way Contribution Agreement (as more specifically described in the Security Documents) whether now owned or hereafter acquired or arisingacquired, pursuant to the Security Documents, including, without limitation, the following:
(ia) any and all Unfunded Capital Commitments Stock of the Investors, whether now or hereafter committed, including but not limited to Borrower and each of the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoSubsidiaries of the Borrower;
(iib) all of the Property (as such Property is more specifically described in the Security Documents), including tangible and intangible Property and real and personal Property, of the Borrower and each of the Subsidiaries of the Borrower, including, without limitation, the following: Investments (including certificates of deposit); accounts; inventory (including, without limitation, work in process); equipment; deposit accounts (including cash collateral accounts); brokerage accounts; investment property; instruments; contract rights (including, without limitation, the Asset Contribution Agreement, the Rights-of-Way Contribution Agreement, all contracts relating to the extent Contract Rights-of-Way and other rights-of-way, easements, leases and all related contracts and all other contracts relating to the Unfunded Capital Commitments construction or operation of the Investors constituting Collateral in clause (i) aboveNetwork, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents consents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and waivers necessary or appropriate from all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect parties to such Collateral;
(iv) each Collateral Accountcontracts, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all consents and waivers necessary or appropriate to permit the collateral assignment of or security interest in such contracts); customer deposits in connection with purchase orders; general intangibles; real Property and interests therein (if and to the extent required pursuant to SECTION 5.4); chattel paper; Licenses; Intellectual Property; and intercompany Debt;
(c) all Debt (i) owed by Holdings to the Borrower or any Subsidiary of the records Borrower, (ii) owed by the Borrower to Holdings or any Subsidiary of the Guarantor concerning Borrower, or (iii) owed by any Subsidiary of the Borrower to Holdings or the Borrower or another Subsidiary of the Borrower; and
(d) all cash and non-cash proceeds and products of any of the foregoing Collateralforegoing. Notwithstanding anything to the contrary contained in this ARTICLE 5 or SECTION 8.10, unless and until an Event of Default has occurred and is continuing, neither the Borrower nor any of its Subsidiaries shall be required, by virtue of this ARTICLE 5 or SECTION 8.10, to execute any mortgage, deed of trust or similar agreement or UCC financing statement granting or perfecting a Lien on any Real Estate Assets or fixtures if and to the extent that such mortgage, deed of trust or similar agreement or UCC financing statement is required to be filed in any county, parish or equivalent subdivision of any State; excluding PROVIDED, HOWEVER, that the Borrower and its Subsidiaries shall be required to execute and deliver (A) UCC financing statements (1) constituting transmitting utility filings or (2) constituting fixture filings in all counties, parishes or equivalent subdivisions of any funds properly withdrawn from a Collateral Account (State whereat any Significant Points of Presence are located whether or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms not an Event of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents Default has then occurred and this Credit Agreement, is continuing and (B) the proceeds all such mortgages, deeds of such withdrawn funds (the items in (A) trust or similar agreements and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything all UCC financing statements referred to the contrary in this Credit Agreement or any other Loan Document (i) sentence above upon the term “Collateral” shall not include the Unfunded Capital Commitments request of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent or the Required Lenders and at any time and from time to time after the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinoccurrence and during the continuance of an Event of Default.
Appears in 1 contract
Collateral. Subject to As collateral security for the terms prompt performance, observance and payment in full of all of the applicable Collateral DocumentsObligations, each Borrower hereby grants, pledges and assigns to secure the payment Lender continuing security interests in and performance liens upon, and rights of setoff against, all of the Obligations hereunderfollowing now owned and hereafter acquired or existing assets and properties of such Borrower (which assets and properties, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the together with all other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, collateral security for the benefit of each of Obligations granted to or otherwise held or acquired by Lender are referred to herein as the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether "Collateral"):
4.1 all now owned or hereafter acquired or arising:
(i) any and Accounts, together with all Unfunded Capital Commitments of the Investorsfollowing now owned or hereafter acquired assets and properties of such Borrower, whether wherever located (collectively, the "Receivables"): (a) chattel paper, documents, notes and other instruments which evidence or relate to any of the Accounts or other property described in this Section 4 and including all documents of title with respect to any Inventory or which evidence or relate to indebtedness arising pursuant to Accounts or other property described in this Section 4; (b) all monies, securities, investment property, credit balances and other property and the proceeds thereof, now or hereafter committedheld or received or held by, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) or in transit to, Lender whether for safekeeping, pledge, custody, transmission, collection or otherwise to the extent relating to the Unfunded Capital Commitments constituting proceeds of the Investors constituting Collateral Accounts or other property described in clause this Section 4; (ic) above, deposits (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (ygeneral or special) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description balances to the extent evidencing held in the Blocked Accounts, or supporting obligations under any deposit account (or other account) used in connection with the collection of Receivables or other property described in this Section 4 or the remittance thereof to Lender, or containing proceeds of Receivables or other property described in this Section 4; (d) all present and future liens, security interests, rights, remedies, title and interest in, to and in respect of Accounts or any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Accountdescribed in this Section 4, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all (i) rights and remedies under or relating to guaranties, contracts of suretyship, letters of credit and credit and other insurance related to the records of the Guarantor concerning Accounts or any of the foregoing Collateral; excluding other property described in this Section 4, (Aii) any funds properly withdrawn from a Collateral Account rights of stoppage in transit, replevin, repossession, reclamation and other rights and remedies of an unpaid vendor, lienor or secured party, (iii) rights to goods described in invoices, documents, contracts or that could be withdrawn pursuant to the Credit Agreement if deposited instruments with respect to, or credited to a Collateral Account) to the extent usedotherwise representing or evidencing Accounts or other property described in this Section 4, pursuant to the terms of the Guarantor’s Governing Documentsincluding, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account)without limitation, to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents returned, repossessed and this Credit Agreementreclaimed goods, and (Biv) deposits by, and property of, Account Debtors or other persons securing the proceeds obligations of such withdrawn funds (Account Debtors, provided, that, for purposes of this Section 4.1, the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” Collateral shall not include the Unfunded Capital Commitments U.S. Services Agreements listed on Schedule 1.83 hereto or Accounts arising in the ordinary course of business payable by Doe Run Mining or Doe Run Peru to Doe Run under the SOX InsidersU.S. Services Agreements listed on Schedule 1.83 hereof;
4.2 all Inventory;
4.3 all now owned or hereafter acquired contracts, including but not limited contract rights, licenses, customer lists and other general intangibles relating to the right Receivables and the Inventory, including, without limitation, (a) trademarks, patents and other intellectual property to draw down Investor Capital Contributions on such Unfunded Capital Commitmentsthe extent affixed to, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investmentto be affixed to, any Portfolio Assets Inventory or any Excluded Proceedsother property described in this Section 4 for purposes of selling the same, (iii) the term “Collateral” shall not include any collateral posted or received otherwise necessary or reasonably desirable in connection with the Swap Agreementscollection, sale or other disposition of the Receivables or any of the other property described in this Section 4), (ivb) choses in action, causes of action and other claims and rights relating to the Receivables and Inventory, including, without limitation, those against Account Debtors, and against shippers and carriers, (c) agreements or arrangements with sales agents, distributors or the like and/or consignees, warehouses or other third persons in possession of any Inventory, (d) the Collateral may be subject to Permitted LiensBlocked Accounts, or any deposit account (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (viaccount) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except used in connection with the collection of Receivables or other property described in this Section 4 or the remittance thereof to Lender or containing proceeds of Receivables or other property described in this Section 4, and (e) guaranty or warranty claims with respect to Receivables or Inventory;
4.4 all monies, securities, investment property, credit balances and other property and the proceeds thereof, now of herafter held or received or held by, or in transit to, Lender, whether for safekeeping, pledge, custody, transmission, collection or otherwise;
4.5 all Records; and
4.6 all products and proceeds of the foregoing, in any Swap Agreementform, as provided thereinincluding, without limitation, any insurance proceeds and any claims against third persons for loss or damage to or destruction of any or all of the foregoing.
Appears in 1 contract
Collateral. Subject Each Grantor hereby pledges, collaterally assigns and transfers to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantAgent, and shall pledge and/or assign by way of security, grants to the Administrative Collateral Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, Lien on and a security interest in all of the following property and ▇▇▇▇ in and on its interests in the following, whether assets now owned or at any time hereafter acquired by such Grantor or arisingin which such Grantor now has or at any time in the future may acquire any right, title or interest wherever located (collectively, the “Collateral”), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Secured Obligations:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts (other than Excluded Deposit Accounts);
(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Intellectual Property and IP Licenses;
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoInventory;
(j) all Investment Property;
(k) all Letter-of-Credit Rights;
(l) all Supporting Obligations, to the extent pertaining to the Collateral;
(m) [Reserved];
(n) all Goods and other property not otherwise described above (except for (i) any property specifically excluded from any clause in this Section 3 above and (ii) any property specifically excluded from any defined term used in any clause of this Section 3 above);
(o) all books and records pertaining to the Collateral;
(p) all Commercial Tort Claims listed on Schedule 4 hereto or described in any notice sent pursuant to Section 5.8 hereof; and
(q) to the extent relating to the Unfunded Capital Commitments not otherwise included, all Proceeds (including proceeds from all insurance policies of any kind covering any part of the Investors constituting Collateral in clause (i) abovemaintained by any Grantor), (x) the Constituent DocumentsPayment Intangibles, (y) the Subscription Agreements Supporting Obligations and Side Letters, if any, products of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any foregoing and all representations, warranties, covenants collateral security and other agreements of such Investors or guarantors contained therein, guaranties given by any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors Person with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)foregoing. Notwithstanding the foregoing foregoing, no Lien or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiderssecurity interest is hereby granted on, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) and the term “Collateral” shall not include any Portfolio Investmentof the following (collectively, the “Excluded Property”): (i) any Portfolio Assets trademark application filed in the United States Patent and Trademark Office on the basis of the applicant’s intent-to-use such trademark unless and until evidence of use of such trademark has been filed with and duly accepted by the United States Patent and Trademark Office pursuant to Section 1(c) or Section 1(d) of the ▇▇▇▇▇▇ Act (15 U.S.C. § 1051, et sq.) (but only until such evidence of use if filed with and accepted by the United States Patent and Trademark Office); (ii) leasehold interests, and there shall be no requirement that Grantors obtain a landlord waiver or collateral access agreement for any Excluded Proceeds, location (other than as expressly required by the Loan Agreement); (iii) motor vehicles and other assets subject to certificates of title; (iv) Letter-Of-Credit Rights except to the term extent perfection of a security interest therein may be accomplished solely by the filing of a financing statement in appropriate form in the applicable jurisdiction under the UCC; (v) commercial tort claims with a value of less than $500,000 in each case or $1,000,000 in the aggregate; (vi) any rights or interests in any lease, license, contract, or agreement, as such or the assets subject thereto if under the terms of such lease, license, contract, or agreement, or Applicable Law with respect thereto, the valid grant of a Lien therein or in such assets to Collateral Agent is prohibited and such prohibition has not been or is not waived or the consent of the other party to such lease, license, contract, or agreement or any applicable Governmental Authority has not been or is not otherwise obtained or under Applicable Law such prohibition cannot be waived; provided, however, the foregoing exclusions shall in no way be construed (x) to apply if any such prohibition would be rendered ineffective under the UCC (including Sections 9-406, 9-407 and 9-408 thereof) or other Applicable Law (including the United States bankruptcy code) or principles of equity, (y) so as to limit, impair or otherwise affect the Collateral Agent’s unconditional continuing Liens upon any rights or interests of any Grantor in or to the Proceeds thereof (including proceeds from the sale, license, lease or other disposition thereof), including monies due or to become due under any such lease, license, contract, or agreement (including any Accounts or other Receivables), unless such Proceeds or other amounts would otherwise be excluded from Collateral pursuant to the terms of this paragraph, or (z) to apply at such time as the condition causing such prohibition shall be remedied and, to the extent severable, “Collateral” shall not include any collateral posted portion of such lease, license, contract, agreement or received assets subject thereto that does not result in connection with the Swap Agreementssuch prohibition; (vii) any lease, (iv) the Collateral may be license or other agreement or any property subject to Permitted Liensa purchase money security interest or similar arrangement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money arrangement or create a right of termination in favor of any other party thereto (v) a other than Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition a Guarantor) after giving effect to the Collateral Accounts that will applicable anti-assignment provisions of the Uniform Commercial Code, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibition, and other than proceeds and receivables thereof; (viii) any fee-owned Real Property with a fair market value of less than $2,000,000; (ix) Excluded Deposit Accounts; (x) Capital Stock in any Person acquired after the Closing Date to the extent the terms of any applicable organizational documents, joint venture agreement or shareholders’ agreement prohibit the pledge of such Capital Stock for so long as such prohibition exists (so long as such prohibition did not be considered “Collateral” arise in contemplation of the acquisition of such Person or such Capital Stock); (xi) Capital Stock of Excluded Subsidiaries; (xii) any governmental licenses or state or local franchises, charters and authorizations, to the extent and for so long as security interests in such other accounts shall not be subject to control agreements licenses, franchises, charters or other restrictions authorizations are prohibited or restricted thereby; and (vixiii) those assets as to which the Administrative Agent and Borrower reasonably agree, and continue to reasonably agree, that the cost of obtaining such a security interest therein are excessive in relation to the benefit to the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinof the security to be afforded thereby.
Appears in 1 contract
Sources: Loan Agreement (Mimedx Group, Inc.)
Collateral. Subject to the terms of the applicable Collateral Documents, to To secure the full and complete payment and performance of the Obligations hereunderObligations, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements Parent and the other related documents, the Guarantor shall grantBorrower shall, and shall pledge and/or assign by way cause each of securitythe Guarantors to, grant to the Administrative Agent, for the benefit of each of Agent and the Secured Parties, as applicableLenders, a perfected, first prioritypriority Lien (subject only to any Lien permitted under Section 11.2 to the extent, security if any, any such Lien would have a higher priority by operation of law than the Liens in favor of Agent) on all of its right, title, and interest and ▇▇▇▇ in and on its interests in to the followingfollowing Property, whether now owned or hereafter acquired or arisingacquired, pursuant to the Security Documents:
(a) all Capital Stock of each Domestic Subsidiary (whether present or future, but (i) any excluding the Capital Stock of InterVoice Communications International, Inc., Phone Star Corp., and all Unfunded Capital Commitments VoicePlex Corporation, each of which are Wholly-Owned Domestic Subsidiaries and which Parent agrees to dissolve in accordance with applicable law within sixty (60) days of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors Closing Date and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to required by the Unfunded Capital Commitments agreement of limited partnership of InterVoice Limited Partnership, excluding 25% of the Investors constituting Collateral in clause partnership interest of such limited partnership), including, without limitation, the Shares owned by Parent or Borrower at any time, owned as of the Closing Date or thereafter acquired by Parent or any Subsidiary of Parent;
(b) the lesser of (i) above65% of the shares of each class of Capital Stock of each Foreign Subsidiary (whether present or future) that is a direct, wholly-owned Subsidiary of Parent or of a Domestic Subsidiary, or (xii) all of the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, shares of each class of Capital Stock of each such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toForeign Subsidiary, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any owned as of the foregoing Collateral and any and all security and other property with respect to Closing Date or thereafter acquired by Parent or such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretoDomestic Subsidiary; and
(vc) any and all proceeds other Property of any each Loan Party, owned as of the foregoing Collateral Closing Date or thereafter acquired, including, without limitation, all accounts (including, without limitation, Receivables), inventory (including, without limitation, Inventory), equipment (provided that prior to a request by Agent during the existence of an Event of Default, no Loan Party shall be required to deliver any certificate of title on equipment or vehicles with a market value of less than $50,000), furniture, fixtures, contract rights, general intangibles, documents, instruments, investment property, chattel paper, Permits, Intellectual Property (provided that prior to a request by Agent during the records existence of an Event of Default, no Loan Party shall be required to register any Intellectual Property with any Governmental Authority other than such registrations which are reasonably necessary to protect the Guarantor concerning Intellectual Property of any Loan Party), intercompany Debt, licenses, and real Property, and proceeds of any of the foregoing Collateralforegoing; excluding (A) any funds properly withdrawn from a Collateral Account (or provided that could with respect to licenses, contract rights, and Permits which according to their terms are not assignable such Liens shall not be withdrawn pursuant required to the Credit Agreement if deposited or credited attach to a Collateral Account) to the extent used, pursuant to the terms such Property. Each of Parent and Borrower covenants that none of the Guarantor’s Governing Documents, Capital Stock to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors be pledged in accordance with the terms hereof or for this Section 7.1 shall be subject to any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreementtransfer restrictions, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitmentsshareholders' agreement, or any other interests of the SOX Insidersrestriction except for such restrictions under applicable securities laws and such restrictions, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in as may be acceptable to Agent. In connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts and in addition to the foregoing, Parent and its Subsidiaries shall execute and/or deliver such Security Documents and further agreements, documents, and instruments (including, without limitation, stock certificates, stock powers, and financing statements) as Agent may request in order for it to obtain and maintain the perfected, first priority Liens to be granted in accordance with this Section 7.1. Notwithstanding the foregoing, neither Brite nor any Subsidiary of Brite shall be required to execute any Security Document or deliver any Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) as required by this Section until consummation of the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinBrite Merger.
Appears in 1 contract
Sources: Credit Agreement (Intervoice Inc)
Collateral. Subject to the terms of the applicable Collateral Documents, to To secure the full and complete payment and performance of the Obligations hereunderObligations, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements Holdings and the other related documents, the Guarantor shall grantBorrower will, and shall pledge and/or assign by way will cause each Subsidiary of securitythe Borrower to, grant to the Administrative Agent, Agent for the benefit of each the Administrative Agent and the Lenders a perfected, first priority Lien on all of the Secured Partiesright, as applicable, a first priority, security title and interest and ▇▇▇▇ in and on its interests to their Properties as set forth below (as more specifically described in the following, Security Documents) whether now owned or hereafter acquired or arisingacquired, pursuant to the Security Documents, including, without limitation, the following:
(ia) any and all Unfunded Capital Commitments Stock of the Investors, whether now or hereafter committed, including but not limited to Borrower and each Subsidiary of the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoBorrower;
(iib) to the extent relating to the Unfunded Capital Commitments all of the Investors constituting Collateral Property of the Borrower and each Subsidiary of the Borrower (as such Property is more specifically described in clause (i) above, (x) the Constituent Security Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), including tangible and intangible Property and real and personal Property, including, without limitation, the following: Investments (y) and including certificates of deposit); accounts; inventory (zincluding, without limitation, work in process), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all ; equipment; deposit accounts (including cash collateral accounts); brokerage accounts; instruments; contract rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all contracts relating to the construction or operation of the records Network, including rights of the Guarantor concerning any of the foregoing Collateralway, easements, leases and all related contracts); excluding customer deposits in connection with purchase orders; general intangibles; real Property and interests therein (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) and to the extent used, required pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments Section 5.4); instruments; chattel paper; Licenses; Intellectual Property; and intercompany Debt;
(other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (Bc) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document all Debt (i) owed by the term “Collateral” shall not include the Unfunded Capital Commitments Borrower to any Subsidiary of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretionBorrower, (ii) owed by any Subsidiary of the term “Collateral” Borrower to the Borrower or to any Subsidiary to the Borrower, or (iii) owed by Holdings to the Borrower or to any Subsidiary of the Borrower; and
(d) all cash and non-cash proceeds and products of any of the foregoing. The Collateral shall not include any Portfolio Investmentof the following Property as long as such Property is encumbered by Permitted Liens (or, in the case of the Lucent Equipment, expected to be encumbered by November 30, 2000) and as long as such Property is not Nortel Networks Equipment, Nortel Networks Software nor any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection other Property acquired with the Swap Agreements, (iv) proceeds of the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.Loans:
Appears in 1 contract
Collateral. Subject (i) Without the consent of any other person, but subject to the terms of the any applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Intercreditor Agreement, the related financing statements applicable Credit Party or Parties and the other related documentsAdministrative Agent and/or Collateral Agent may (in its or their respective sole discretion), the Guarantor shall grant, and shall pledge and/or assign by way of securityor shall, to the Administrative Agentextent required by any Loan Document enter into any amendment or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion (including to cover additional amounts as secured obligations thereunder) or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of each of the Secured Parties, or as applicablerequired by local law to give effect to, a first priorityor protect, any security interest and ▇▇▇▇ in and on its interests in for the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments benefit of the Investors, whether now Secured Parties in any property or hereafter committed, including but not limited to so that the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls security interests therein comply with respect thereto;applicable Requirements of Law.
(ii) Notwithstanding anything in this Agreement or any Security Document to the extent relating to contrary, the Unfunded Capital Commitments Administrative Agent and/or, as applicable, the Collateral Agent may, in its sole discretion, grant extensions of time for the satisfaction of any of the Investors constituting requirements under Sections 5,10 and 5,11 or of any Security Document in respect of any particular Collateral in clause (i) above, (x) or any particular Subsidiary if it determines that the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions satisfaction thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;to such Collateral or such Subsidiary cannot be accomplished without undue expense or unreasonable effort or due to factors beyond the control of Holdings, the Borrower and the Restricted Subsidiaries by the time or times at which any such requirement would otherwise be required to be satisfied under this Agreement or any Security Document.
(iii) any and all agreements, instruments and other documents of every kind or description The Lenders hereby irrevocably agree that the Liens granted to the extent evidencing or supporting obligations under Collateral Agent by the Credit Parties on any Collateral shall be automatically released (i) in full, upon the termination of this Agreement and the foregoing Collateral and any and payment in full of all security and Secured Obligations (other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding than (A) any funds properly withdrawn from a Collateral Account contingent indemnification obligations and unasserted expense reimbursement obligations, (or that could be withdrawn pursuant B) obligations and liabilities under Secured Cash Management Agreements and Secured Hedging Agreements as to which arrangements satisfactory to the applicable Cash Management Bank or Hedge Bank shall have been made, and (C) Letters of Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors that have been cash collateralized in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and of this Credit Agreement, and (B) the proceeds backstopped with a back to back letter of such withdrawn funds (the items credit in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything a manner reasonably acceptable to the contrary in this Credit Agreement applicable Issuing Bank or any other Loan Document (i) rolled into another credit facility to the term “Collateral” shall not include the Unfunded Capital Commitments sole satisfaction of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretionapplicable Issuing Bank), (ii) upon the term “Collateral” shall not include sale or other disposition of such Collateral (including as part of or in connection with any Portfolio Investmentother sale or other disposition permitted hereunder) to any Person other than another Credit Party, to the extent such sale or other disposition is made in compliance with the terms of this Agreement (and the Collateral Agent may rely conclusively on a certificate to that effect provided by any Portfolio Assets or any Excluded ProceedsCredit Party upon its reasonable request without further inquiry), (iii) to the term “Collateral” shall not include any collateral posted extent such Collateral is comprised of property leased to a Credit Party, upon termination or received in connection with the Swap Agreementsexpiration of such lease, (iv) if the Collateral release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or such other percentage of the Lenders whose consent may be subject to Permitted Liensrequired in accordance with this Section 10.02), (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the extent the property constituting such Collateral Accounts that will not be considered “Collateral” and is owned by any Guarantor, upon the release of such other accounts shall not be subject to control agreements or other restrictions and Guarantor from its obligations under the applicable Guarantee (in accordance with the second following sentence), (vi) as required to effect any sale or other disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Security Documents, or (vii) if such assets constitute Excluded Property. Any such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those being released) upon (or obligations (other than those being released) of the Credit Parties in respect of) all interests retained by the Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral except to the extent otherwise released in accordance with the provisions of the Loan Documents. Additionally, the Lenders hereby irrevocably agree that any Restricted Subsidiary that is a Guarantor shall be released from the Guarantees upon consummation of any transaction not prohibited by this Agreement resulting in such Subsidiary ceasing to constitute a Restricted Subsidiary or upon becoming an Excluded Subsidiary. The Lenders hereby authorize the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap AgreementCollateral Agent, as provided thereinapplicable, to, and the Administrative Agent and the Collateral Agent agree to, execute and deliver any instruments, documents and agreements necessary or desirable or reasonably requested by the Borrower to evidence and confirm the release of any Guarantor or Collateral pursuant to the foregoing provisions of this paragraph, all without the further consent or joinder of any Lender and without any representation or warranty of any such Agent or Lender.
Appears in 1 contract
Sources: Credit Agreement (Dragoneer Growth Opportunities Corp. II)
Collateral. Subject The Secured Obligations shall be secured by valid, perfected, and enforceable Liens on all right, title, and interest of the Borrower in the following personal property: Receivables and all Letter of Credit Rights and insurance relating to such Receivables; Repurchase Agreements; documents of title with respect to any Qualified Commodity including, without limitation, warehouse receipts (both tangible and electronic); Hedging Accounts and Hedging Agreements; investment property;, Qualified Commodities; Revolving B Collateral, general intangibles relating to the terms foregoing; rights to merchandise and other goods which is represented by, arises from, or relates to any of the applicable Collateral Documentsforegoing; supporting obligations and security interests relating to the foregoing; monies, to secure the payment personal property, and performance interests in personal property of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantBorrower of any kind or description held by any Lender, and shall pledge and/or assign by way of security, all dividends and distributions on or other rights in connection with any such property; supporting evidence and documents relating to the Administrative Agent, for the benefit of each any of the Secured Partiesabove‑described property; and accessions and additions to, as applicableand substitutions and replacements of, a first priorityany and all of the foregoing, security interest and ▇▇▇▇ in and on its interests in the following, each case whether now owned or hereafter acquired or arising:
(i) any , and all Unfunded Capital Commitments proceeds thereof. The Borrower acknowledges and agrees that the Liens on the Collateral shall be granted to the Administrative Agent for the benefit of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments holders of the Investors constituting Collateral in clause (i) aboveObligations and the Funds Transfer and Deposit Account Liability, (x) the Constituent Documentsand shall be valid and perfected first priority Liens subject, (y) the Subscription Agreements and Side Lettershowever, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toto Liens permitted by Section 8.8 hereof, in each case of clauses (x), (y) pursuant to one or more Collateral Documents from the Borrower in form and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description substance satisfactory to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinAgent.
Appears in 1 contract
Sources: Credit Agreement (Intl Fcstone Inc.)
Collateral. Subject to (a) As collateral security for the terms of the applicable Collateral Documents, to secure the prompt payment and performance in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations hereunderObligations, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements each Grantor hereby pledges and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, grants to the Administrative Agent, Secured Party (for the ratable benefit of each of the Secured Parties, as applicable, Holders) a first priority, Lien on and security interest in all of such Grantor’s right, title and ▇▇▇▇ in and on its interests interest in the followingfollowing properties and assets of such Grantor, whether now owned by such Grantor or hereafter acquired and whether now existing or arising:hereafter coming into existence and wherever located (all being collectively referred to herein as “Collateral”):
(i) any all Instruments, together with all payments thereon or thereunder, and Letter-of-Credit Rights;
ii) all Accounts;
iii) all cash and cash equivalents;
iv) all Inventory;
v) all General Intangibles (including Software);
vi) all Equipment;
vii) all Documents;
viii) all Contracts;
ix) all Goods;
x) all Investment Property and Financial Assets (as defined in the UCC) and all Unfunded Capital Commitments dividends, distributions, return of capital, interest, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange therefor and all warrants, rights or options issued thereon or with respect thereto;
xi) all Deposit Accounts and the Investorsbalance from time to time in all bank accounts maintained by such Grantor;
xii) all Commercial Tort Claims specified on Schedule VIII;
xiii) all Intellectual Property;
xiv) all Chattel Paper, whether now or hereafter committedall amounts payable thereunder, all rights and remedies of such Grantor thereunder including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors amend, grant waivers and declare defaults, any and all accounts evidenced thereby, any guarantee thereof, and all collections and monies due or to issue Investor Capital Calls with respect theretobecome due or received by any Person in payment of any of the foregoing;
(iixv) all Receivables and Receivable Records;
xvi) all Insurance;
xvii) all Pledged Collateral;
xviii) all Fixtures;
xix) to the extent not otherwise included above, all Collateral Records, Collateral Support and Supporting Obligations relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretoforegoing; and
(vxx) any all other tangible and all proceeds intangible property of any of the foregoing Collateral such Grantor, including, without limitation, all interests in real property, Proceeds, tort claims, products, accessions, rents, profits, income, benefits, substitutions, additions and replacements of the records of the Guarantor concerning and to any of the foregoing Collateral; excluding property of such Grantor described in the preceding clauses of this Section 3 (A) including, without limitation, any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent usedproceeds of insurance thereon, pursuant to the terms of the Guarantor’s Governing Documentsinsurance claims and all rights, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to claims and benefits against any such accountPerson relating thereto), other rights to make payments not otherwise included in the foregoing, and all books, correspondence, files, records, invoices and other papers, including without limitation all tapes, cards, computer runs, computer programs, computer files and other papers, documents and records in the possession or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds control of such withdrawn funds (the items in (A) and (B)Grantor, collectively “Excluded Proceeds”)any computer bureau or service company from time to time acting for such Grantor. Notwithstanding the foregoing or anything to the contrary in this Credit Agreement, this Agreement or any other Loan Document (i) shall not constitute a grant of a security interest in, and the term “Collateral” shall not include the Unfunded Capital Commitments be deemed to exclude, all of the SOX Insidersfollowing property (the “Excluded Collateral”): (A) any intent-to-use trademark applications filed pursuant to Section 1(b) of the L▇▇▇▇▇ Act, including but not limited 15 U.S.C. §1051, to the extent that, and solely during the period in which, the grant of a security interest therein would otherwise invalidate any Grantor’s right, title or interest therein, (B) any property owned by a Grantor that is subject to a purchase money Lien or a “capital lease” in accordance with GAAP permitted hereunder or under the Note Documents if the contractual obligation pursuant to which such Lien is granted (or the document providing for such capital lease) prohibits the creation of a Lien thereon or expressly requires the consent of any person other than a Grantor, unless such consent has been obtained or such prohibitions otherwise cease to exist, in which case such Collateral shall automatically become subject to the security interest granted hereunder, (C) any General Intangibles or other right, title, or interest, in or otherwise arising under any contracts, instruments, licenses, leases or other documents as to which the grant of a security interest would violate or invalidate any such contract, instrument, license or other document or give any other party to such contract, instrument, license or other document the right to draw down Investor Capital Contributions on such Unfunded Capital Commitmentsterminate its obligations thereunder, (D) any asset, the granting of a security interest in which would be void or illegal under any Applicable Law, or any other interests of pursuant thereto would result in, or permit the SOX Insiderstermination of, if anysuch asset, unless so elected by provided, that the Guarantor property described in its discretion, clauses (iiC) and (D) above shall only be excluded from the term “Collateral” shall to the extent the conditions stated therein are not include any Portfolio Investmentrendered ineffective pursuant to Sections 9-406, any Portfolio Assets 9-407, 9-408 or 9-409 of the UCC or any other Applicable Law; provided, that (x) immediately upon the ineffectiveness, lapse, termination or waiver of any such provision, the Collateral shall include, and such Grantor shall be deemed to have granted a security interest in, all such right, title and interest as if such provision had never been in effect and (y) the foregoing exclusion shall in no way be construed so as to limit, impair or otherwise affect the Secured Party’s unconditional continuing security interest in and liens upon any rights or interests of a Grantor in or to (1) monies due or to become due under or in connection with any such license, contract, lease or agreement, or (2) any proceeds from the sale, license, lease, or other dispositions of any such license, contract, lease or agreement (unless otherwise constituting Excluded ProceedsCollateral), (iiiE) any Excluded Accounts, (F) those assets as to which the term Secured Party, in consultation with the Grantors, reasonably determines that the costs of obtaining such security interests in such assets are excessive in relation to the benefit to the Secured Party and the Holders of the security to be afforded thereby, (G) equity interests in any Foreign Subsidiary to the extent a pledge of more than 65% of the voting stock of such Subsidiary would reasonably be expected to result in material adverse tax consequences, (H) any assets or property of any Foreign Subsidiary, (I) any owned real property with a fair market value in an amount less than $1,000,000 or leasehold interests in real property, (J) all Motor Vehicles, (K) any non-assignable governmental permits, licenses and authorizations to the extent a security interest therein is prohibited by applicable law, (L) any “intent-to-use” filings outside the United States to the extent inclusion would impair validity under applicable law and (M) any application software and other intellectual property that is commercially available to the public on standard terms, open-source software and off-the-shelf software. Notwithstanding the foregoing, all Proceeds of the property described in clauses (A) through (M) above shall constitute Collateral and shall be included within the property and assets over which a security interest is granted pursuant to this Agreement, unless such Proceeds would independently constitute Excluded Collateral; provided, however, that “Excluded Collateral” shall with respect to the exclusions set forth in clauses (C) and (D) above, not include be construed to limit, impair or otherwise affect the Secured Parties’ continuing security interests in any collateral posted Grantor’s rights to or received interests of any Grantor in (x) monies due or to become due under any such contract, license, agreement, instrument or other document (to the extent not prohibited by such contract, license, agreement, instrument or other document and Applicable Law) or (y) any proceeds from the sale, license, lease or other disposition of any such contract, license, agreement, instrument or other document.
(b) The security interest granted under this Section does not constitute and is not intended to result in a creation or an assumption by the Secured Party of any obligation of any Grantor or any other Person in connection with any or all of the Swap AgreementsCollateral or under any agreement or instrument relating thereto. Anything herein to the contrary notwithstanding, (ivi) the Collateral may be subject to Permitted Liens, (v) a Borrower or exercise by the Guarantor may maintain other bank accounts or securities accounts Secured Party of any of its rights in addition to the Collateral Accounts that will shall not release any Grantor from any of its duties or obligations in respect of the Collateral other than any duties and obligations arising with respect to Collateral after such Grantor has been dispossessed of such Collateral by the Secured Party (or its assignee), which, by their nature, may not be considered “Collateral” and satisfied without possession of such other accounts shall not be subject to control agreements or other restrictions Collateral and (viii) the Administrative Agent and the Secured Parties Party shall not have any Lien on any property that is not “Collateral”, except obligations or liability in connection with any Swap respect of the Collateral by reason of this Agreement, as provided thereinnor shall the Secured Party be obligated to perform any of the obligations or duties of any Grantor thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.
Appears in 1 contract
Sources: Securities Purchase Agreement (Picard Medical, Inc.)
Collateral. Subject to the terms The Collateral shall consist of all right, title and interest of the applicable Collateral Documents, Company of every kind and nature in and to secure the payment and performance all of the Obligations hereunderfollowing property, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements assets and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each rights of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the followingCompany wherever located, whether now existing or hereafter arising, and whether now or hereafter owned or hereafter acquired by or arising:accruing or owing to the Company, and all proceeds and products thereof (including all proceeds in the Settlement Account, the Cash and Collateral Account and any Custodian Settlement Accounts from time to time):
(a) all Pledged Mortgages;
(b) all Pledged Securities;
(c) any commitments or other agreements issued by any private mortgage insurer or by the FHA or VA to insure or guarantee any Pledged Mortgage;
(d) all commitments of FNMA, FHLMC or other Persons to purchase Pledged Items from the Company or exchange Securities with the Company for Pledged Items;
(e) any options to sell or purchase Securities, future contracts, or any other interest rate protection products which directly or indirectly protect the Company against reductions in value of such Pledged Items due to changes in mortgage interest rates;
(f) the Settlement Account, the Cash and Collateral Account and any Custodian Settlement Accounts and any amounts standing to the credit of the Settlement Account, the Cash and Collateral Account and any Custodian Settlement Accounts then in existence with Approved MBS Custodians, as described in Paragraph 7(c) below;
(g) all cash and Cash Equivalents held by the Credit Agent or Collateral Agent as security for the Secured Obligations;
(h) all Pledged Servicing;
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoPledged Servicing Sale Receivables;
(iij) all property related to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveforegoing, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, the right to service Pledged Mortgages while owned by the Company, all accounts and general intangibles of whatsoever kind so related and all documents or instruments delivered to the Credit Agent or the Collateral Agent in respect of any Pledged Item, including, without limitation, the right to receive all insurance proceeds and condemnation awards which may be payable in respect of the records premises encumbered by any Pledged Mortgage; and
(k) all proceeds and products of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 1 contract
Collateral. Subject to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantIn addition to, and shall pledge and/or assign by way of securitynot in substitution for, any Property delivered, conveyed, transferred or assigned to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇▇ Fargo under any Loan Document as security for any or all of the obligations and liabilities of Applicant to ▇▇▇▇▇ Fargo at any time existing under or in connection with any Letter of Credit Document or any Loan Document', Applicant grants to ▇▇▇▇▇ Fargo a security interest in and on its interests to the following Collateral, whether or not any such Collateral is in ▇▇▇▇▇ Fargo's possession or control or in the followingpossession or control of ▇▇▇▇▇ Fargo's agents or correspondents or in transit to, whether now owned or hereafter acquired set apart for, ▇▇▇▇▇ Fargo or arising:
any of ▇▇▇▇▇ Fargo's agents or correspondents: (a) with respect to each Credit and until such time as all the obligations and liabilities of Applicant to ▇▇▇▇▇ Fargo at any time existing under or in connection with each Credit and each Letter of Credit Document and each Loan Document related to such Credit have been fully paid and discharged, all as security for such obligations and liabilities, (i) all Property referred to in each Credit or at any and all Unfunded Capital Commitments of the Investorstime shipped under or pursuant to each Credit or in any way related to each Credit or to any Demand made or Acceptance created under each Credit, whether now or hereafter committednot ▇▇▇▇▇ Fargo receives the Documents covering such Property or releases such Documents to Applicant on trust or bailee receipt or otherwise, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to all Documents accompanying any Demand made under each Credit, and (iii) all the extent relating to the Unfunded Capital Commitments proceeds of the Investors constituting Collateral Property and the Documents referred to in clause subsections (i) aboveand (ii) of this Section 10(a); and (b) with respect to all the Credits and until such time as all the obligations and liabilities of Applicant to ▇▇▇▇▇ Fargo at any time existing under or connection with each Letter of Credit Document and each Loan Document have been fully paid and discharged, all as security for such obligations and liabilities, (xi) all the Constituent Documentsproperty, claims, demands, right, title and interest of Applicant in and to the balance of every deposit account of Applicant with ▇▇▇▇▇ Fargo now or at any time hereafter existing, and all evidences of such deposit accounts, (yii) the Subscription Agreements and Side Lettersall Property belonging to Applicant or in which Applicant may have an interest, if anynow or at any time hereafter delivered, of such Investors and (z) conveyed, assigned, pledged or paid to ▇▇▇▇▇ Fargo or its agents or correspondents in any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including manner whatsoever, whether as security or for safekeeping or otherwise, including, but not limited to, any items received for collection or transmission, and the proceeds of such items, whether or not such Property is in whole or in part released to Applicant on trust or bailee receipt or otherwise, and (iii) where more than one person or entity is an Applicant, all right, title and interest of each case Applicant in and to all the Property which any Applicant may now or hereafter obtain as security for the obligations of clauses the other Applicants or Applicant to such Applicant arising under or in connection with the transaction to which any Credit relates. Further, in addition to, and not in substitution for, any Property delivered, conveyed, transferred or assigned to ▇▇▇▇▇ Fargo under any Loan Document as security for any or all of the obligations and liabilities of Applicant to ▇▇▇▇▇ Fargo at any time existing under or in connection with any Letter of Credit Document or any Loan Document, Applicant agrees to deliver, convey, transfer and assign to ▇▇▇▇▇ Fargo, on demand, as security, Property of a value and character satisfactory to ▇▇▇▇▇ Fargo (x) if ▇▇▇▇▇ Fargo at any time feels insecure about Applicant's ability or willingness to repay any amounts which ▇▇▇▇▇ Fargo has paid or may pay in the future on any Demand or Acceptance or in honoring any other obligation of ▇▇▇▇▇ Fargo under or in connection with any Credit, or (y) without limiting the generality of the foregoing subsection (x), (y) and (z)if any temporary restraining order, restraining order, preliminary injunction, permanent injunction or any type of pretrial or permanent injunctive relief or any similar relief, however named, is obtained restraining, prohibiting or enjoining ▇▇▇▇▇ Fargo, any of ▇▇▇▇▇ Fargo's correspondents or any advising, confirming, negotiating, paying or other bank from paying or negotiating any Demand or creating or paying any Acceptance or honoring any other obligation under or in connection with any Credit. Applicant agrees that the receipt by ▇▇▇▇▇ Fargo's agents or correspondents at any time of any kind of security, including, but not limited to, cash, shall not be deemed a waiver of any of ▇▇▇▇▇ Fargo's rights or powers under this Agreement. Applicant agrees to sign and deliver to ▇▇▇▇▇ Fargo on demand of ▇▇▇▇▇ Fargo all representationssuch deeds of trust, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all security agreements, instruments financing statements and other documents as ▇▇▇▇▇ Fargo shall at any time request which are necessary or desirable (in the sole opinion of every kind or description ▇▇▇▇▇ Fargo) to the extent evidencing or supporting obligations under any of the foregoing Collateral grant to ▇▇▇▇▇ Fargo an effective and any perfected security interest in and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant . Applicant agrees to pay all filing and recording fees related to the Credit Agreement if deposited or credited perfection of any security interest granted to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors ▇▇▇▇▇ Fargo in accordance with the terms hereof this Section 10. Applicant hereby agrees that any or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds all of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” held and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, disposed of by ▇▇▇▇▇ Fargo as provided thereinin this Agreement. Upon any transfer, sale, delivery, surrender or endorsement of any Document or Property which is or was part of the Collateral, Applicant will indemnify and hold ▇▇▇▇▇ Fargo and ▇▇▇▇▇ Fargo's agents and correspondents harmless from and against each and every claim, demand, action or suit which may arise against ▇▇▇▇▇ Fargo or any such agent or correspondent by reason of such transfer, sale, delivery, surrender or endorsement.
Appears in 1 contract
Sources: Continuing Commercial Letter of Credit Agreement (Iomega Corp)
Collateral. Subject to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementCollectively, the Pledged Notes Receivable, together with all accounts, chattel paper, and general intangibles related financing statements thereto and the other related documents, the Guarantor shall grantcash and non-cash proceeds thereof, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether all now owned or hereafter acquired or arising:
(i) right, title, and interest of Borrower in and to all Applicable Underlying Loan Collateral for any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committedPledged Notes Receivable, including but not limited to the right following (to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretothe extent applicable):
(a) The Applicable Mortgages;
(iib) First priority Liens in and to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties Encumbered Personal Property, together with the cash and non-cash proceeds thereof, with appropriate non-disturbance language relating to common area furniture, furnishings, equipment, and fixtures;
(c) Absolute and unconditional first assignments of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representationsleases, warrantiessubleases, covenants licenses, concessions, entry fees, and other agreements of such Investors that grant a possessory interest in and to, or guarantors contained thereinthe right to use, any and all duties and obligations of such Investors Mortgaged Real Property, Encumbered Intervals, Encumbered Personal Property, or guarantors thereunder and any and all rights to compel performance and enforce portion thereof (collectively, the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto"Resort Leases");
(iiid) any Absolute and unconditional first assignments of all agreementsof the rents, instruments revenues, income, proceeds, royalties, profits, and other documents amounts payable for using, leasing, licensing, possessing, operating from or in, or otherwise enjoying all or any portion of every kind any Mortgaged Real Property, Encumbered Personal Property, or description to Encumbered Intervals, including, without limitation, damages received upon the extent evidencing or supporting obligations occurrence of a default under any of the foregoing Collateral and any Resort Leases and all security and other property proceeds payable under any policy of insurance covering loss of rents with respect to such Collateralthereto (collectively, the "Resort Income");
(ive) each Collateral AccountAbsolute and unconditional first assignments of all other agreements to which any Applicable Underlying Borrower is or becomes a party or holds any interest and which in any way relate to the use, occupancy, maintenance, or enjoyment of any Mortgaged Real Property, Encumbered Personal Property, or Encumbered Intervals, including but not limited to utility contracts, maintenance agreements, management agreements, service contracts, and any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds agreement guaranteeing the performance of the obligations contained in any of the foregoing Collateral including, without limitationagreements;
(f) First priority assignments of all of Borrower's rights in and to all Plans, all agreements for the furnishing of architectural, engineering, and/or design services, and all construction contracts and other agreements for the furnishing of labor and/or materials in connection with the development and construction of the records Financed Improvements;
(g) First priority assignments of the Guarantor concerning all of Borrower's rights in and to any and all easements, contracts, leasehold interests (whether as lessor or lessee), permits, licenses, and approvals in respect of all or any portion of an Applicable Resort;
(h) First priority Liens in all inventory, supplies, accounts, chattel paper, and general intangibles owned or hereafter acquired by Borrower or any Underlying Borrower, used or useful in connection with, and placed or to be placed on or under any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX InsidersMortgaged Real Property, including but not limited to the right Units contained therein, and the Encumbered Intervals, together with the cash and non-cash proceeds thereof;
(i) First priority Liens in and to draw down Investor Capital Contributions on such Unfunded Capital Commitmentsall documents, instruments, accounts, chattel paper, and general intangibles relating to the Pledged Notes Receivable and the other Collateral, including the cash and non-cash proceeds thereof;
(j) First priority Liens in and to all books, records, reports, computer tapes, computer disks, and software relating to all or any portion of the Collateral;
(k) Extensions, additions, improvements, betterments, renewals, substitutions, and replacements of, for, or to any of the Collateral, wherever located, together with the products, proceeds, issues, rents, and profits thereof and any replacements, additions, or accessions thereto or substitutions thereof, and all rights in or under insurance policies and to the proceeds of any insurance policies covering any of the other Collateral, all rights to unearned or refunded insurance premiums, and the proceeds of any condemnation awards or any claims regarding any of the other Collateral; and
(l) All now owned or hereafter acquired right, title, and interest of Lender in and to any and all of the collateral for the Timeshare Receivables Credit Facility and any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets timeshare-related loan or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a credit facility between Lender and Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinan Affiliate of Borrower.
Appears in 1 contract
Collateral. Subject to the terms of the applicable Collateral Documents, to To secure the payment when due of any and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreementall Indebtedness, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, Debtor hereby grants to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, Party a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or by the Debtor, whether hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of by the InvestorsDebtor, whether now existing, or whether arising or created hereafter (herein collectively referred to as the "Collateral"):
a) All equipment, machinery, furnishings, furniture, appliances and accessories;
b) All accessions or appurtenances to any of the foregoing;
c) All improvements, extensions, alterations, substitutions, replacements, renewals, and rights belonging or in any way appertaining to all or any part of the foregoing or acquired for use in connection therewith;
d) All right, title, and interest of the Debtor to and under all leases or agreements now existing or hereafter committedentered into for the use, including but not limited to occupancy, or sale of the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretowhole or any part of the foregoing;
(iie) All proceeds payable or to the extent be payable under each policy of insurance relating to the Unfunded Capital Commitments whole or any part of the Investors constituting Collateral foregoing;
f) All proceeds arising from the taking, conveyance, or sale of all or any part of the foregoing (or any interest therein or right accruing thereto) as a result of (or in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (zlieu or anticipation of) any public or quasi-public use under any law or the exercise of the right of appropriation, confiscation, condemnation, or eminent domain; and
g) Without limiting any description of the foregoing, all products and all guaranties proceeds thereof. In no event shall the assets of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toGLEN▇ ▇▇▇▇▇▇ ▇▇▇DINGS, PTY., LTD. or its subsidiaries be encumbered by this Agreement. Furthermore, in each case of clauses (x)the event the Secured Party consents to future acquisitions by the Debtor, (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under this Security Agreement shall not encumber any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected new foreign subsidiaries acquired by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinDebtor.
Appears in 1 contract
Sources: Loan Agreement (Lancer Corp /Tx/)
Collateral. Subject to As collateral security for the terms prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the applicable Collateral DocumentsSecured Obligations, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicableGrantors hereby pledges and grants to the Collateral Agent for the ratable benefit of the Holders, a first priority, security interest in all of such Grantor’s right, title and ▇▇▇▇ in and on its interests interest in the following, whether now owned or hereafter acquired by such Grantor and whether now existing or arising:hereafter coming into existence and wherever located (all of the following being collectively referred to herein as “Collateral”):
(ia) any and all Unfunded Capital Commitments of the InvestorsAccounts, whether now or hereafter committedInstruments, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, Chattel Paper (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (xwhether tangible or electronic), (y) and (z)Inventory, any and all representationsEquipment, warrantiesGoods, covenants Letter of Credit Rights, Payment Intangibles, Software and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
General Intangibles (iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, the Motient Funding Agreement, the Transfer Agreements, the ATC License, the ▇▇▇▇▇▇ License, the Satellite Construction Agreement, the Arianespace Agreement, the SBN Agreement and the Nevada Site Hosting Agreement);
(b) all Investment Property, including all Pledged Equity;
(c) all IP Collateral, and the right to recover for past, present and future infringements or misappropriations thereof and all other rights of any kind whatsoever accruing thereunder or pertaining thereto;
(d) all Payment Intangibles, Software and all other General Intangibles whatsoever not covered by the preceding clauses of this Section 3;
(e) all Commercial Tort Claims arising out of the records events described in Annex 5;
(f) all FCC License Rights, whether now owned or held or hereafter acquired or held by a Grantor, including all FCC Licenses, including, without limitation, the right to receive monies, proceeds, or other consideration in connection with the sale, assignment, transfer, or other disposition of any FCC Licenses, the Guarantor concerning proceeds from the sale of any FCC Licenses or any goodwill or other intangible rights or benefits associated therewith, including without limitation all right of the foregoing Collateral; excluding each Grantor to (A) transfer, assign or otherwise dispose of its rights, title and interests, if any, under or in respect of such FCC Licenses, (B) exercise any funds properly withdrawn rights, demands and remedies against the lessor, licensor or other parties thereto, and (C) all rights of such Grantor to receive proceeds of any insurance, indemnities, warranties, guaranties or claims for damages in connection therewith; provided, that such security interest does not include at any time any FCC License to the extent (but only to the extent) that at such time the Collateral Agent may not validly possess a security interest directly in the FCC License pursuant to applicable Federal law, including the Communications Act of 1934, as amended, and the rules, regulations and policies promulgated thereunder, as in effect at such time, but such security interest does include at all times all proceeds of the FCC Licenses, and the right to receive all monies, consideration and proceeds derived from a Collateral Account or in connection with the sale, assignment, transfer, or other disposition of the FCC Licenses;
(g) all Deposit Accounts, all Securities Accounts and all cash and Investment Property from time to time credited thereto;
(h) Any cash or that could be withdrawn securities contributed to the Issuer pursuant to the Credit Agreement if deposited or credited to a Collateral AccountMotient Funding Agreement;
(i) to the extent usedrelated to any of the foregoing, all books, correspondence, credit files, records, invoices and other papers (including without limitation all tapes, cards, computer runs and other papers and documents in the possession or under the control of the Grantors or any computer bureau or service company from time to time acting for the Grantors); and
(j) all Proceeds, products, offspring, accessions, rents, profits, income, benefits, royalties and other payments now or hereafter due and payable with respect to, and supporting obligations relating to, any and all of the Collateral, and all substitutions and replacements of and to any of the Collateral, including, without limitation, proceeds, collateral and supporting obligations that constitute property of the types described in clauses (a) through (h) of this Section 3. IT BEING UNDERSTOOD, HOWEVER, that:
(A) in no event shall the security interest granted under this Section 3 attach to any lease, license, contract, Intellectual Property or agreement to which any Grantor is a party (or to any of its rights or interests thereunder) or Investment Property to the extent that the grant of such security interest would: (x) constitute or result in either (i) the abandonment, invalidation or unenforceability of any right, title or interest of the Grantors therein; or (ii) a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, Intellectual Property or agreement (other than, to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Guarantor’s Governing Documents, NYUCC); or (y) require the consent of any third party;
(B) to purchase Portfolio Investments the extent that the terms of any Indebtedness incurred to finance the acquisition of any property (other than Permitted Investments deposited any property obtained pursuant to the Satellite Construction Agreement or the Arianespace Agreement) expressly prohibits the pledge, assignment or transfer thereof, or the grant of a security interest therein, the applicable Grantor’s right, title and interest in such property shall be excluded from the Collateral for so long as such prohibition continues;
(C) no security interest shall attach to or credited be granted in United States intent to use trademark applications to the extent that the grant of a security interest therein would impair the validity or enforceability of such intent to use trademark applications under applicable U.S. federal law; and
(D) no security interest shall attach to any such account), to make payments or distributions to Investors in accordance with Excluded Property (and the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds definition of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investmentsuch Excluded Property); provided, that, notwithstanding anything to the contrary, clause (A) shall apply only to the extent that any Portfolio Assets provisions providing for the breach, termination or default with respect to such lease, license, contract, Intellectual Property or agreement were not in contemplation of this Agreement or any Excluded Proceedsof the transactions contemplated by the Indenture; and provided further that immediately upon the ineffectiveness, (iii) lapse or termination of any such prohibition on the term “Collateral” shall not include any collateral posted grant of such security interest or received in connection with the Swap Agreementslien, (iv) the Collateral may be subject to Permitted Liensshall include, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts Grantor shall not be subject deemed to control agreements or other restrictions have granted a security interest in, all such right, title and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except interests as if such prohibition had never been in connection with any Swap Agreement, as provided thereineffect.
Appears in 1 contract
Sources: Security Agreement (Motient Corp)
Collateral. Subject to the terms (A) To secure payment of the applicable Collateral Documents, to secure the payment Obligations and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements its obligations under this Agreement and the other related documentsLoan Documents, the Guarantor shall granteach Borrower grants, mortgages, hypothecates and shall pledge and/or assign by way of security, pledges to the Administrative Agent, for Junior Lenders a continuing lien (which shall be junior in priority to all Liens incurred pursuant to the benefit of each of Senior Subsequent DIP Agreement and the Secured Parties, as applicable, a first priority, Existing Lender Claim) upon and security interest and ▇▇▇▇ in and on its interests in the followingall of such Borrower's property, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investorswherever located, whether now or hereafter committedexisting, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
owned, licensed, leased (ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of Borrower's leasehold interest in such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (xproperty), consigned (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing of such Borrower's ownership interest in such property), arising or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Accountacquired, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records such Borrower's right, title and interest in all Accounts, general intangibles (including without limitation such Borrower's causes of action, contract rights, intellectual property, rights under licensing agreements and tax refunds), chattel paper, instruments, documents, documents of title, Inventory, equipment, deposit accounts, goods, investment property, insurance proceeds of or relating to any of the Guarantor concerning foregoing, actions with respect to preferential transfers, fraudulent conveyances and other avoidance power claims and any recoveries of cash or proceeds of property representing recoveries under sections 544, 547, 548, 549, 550 or 553 of the Bankruptcy Code, books and records relating to any of the foregoing Collateral; excluding and accessions and additions to, substitutions for, and replacements, products and proceeds of any of the foregoing.
(AB) To secure payment of the Obligations and performance of its obligations under this Agreement and the other Loan Documents, each Borrower assigns and conveys as security, grants a security interest in, hypothecates, mortgages, pledges and sets over unto the Junior Lenders all of the right, title and interest of such Borrower in all real property the title to which is held by a Borrower, or the possession of which is held by the Borrowers under a leasehold interest, together in each case with all of the right, title and interest of such Borrower in and to all buildings, improvements, and fixtures related thereto, any funds properly withdrawn from a Collateral Account (lease or that could be withdrawn sublease thereof, all general intangibles relating thereto and all proceeds thereof, subject in each case to Liens incurred pursuant to the Credit Senior Subsequent DIP Agreement if deposited or credited to a Collateral Accountthe Existing Lender Claim. If at any time after the Closing Date any Borrower acquires any fee interest in real property, such Borrower shall promptly notify the Junior Lenders thereof.
(C) To secure payment of the Obligations and performance of its obligations under this Agreement and the other Loan Documents, each Borrower grants, mortgages, hypothecates and pledges to the extent used, Junior Lenders a continuing lien upon and security interest (which lien and security interest shall be junior in priority to all liens incurred pursuant to the terms Senior Subsequent DIP Agreement or the Existing Lender Claim) in (i) all of the Guarantor’s Governing Documents, to purchase Portfolio Investments outstanding shares of capital stock of any Subsidiary of such Borrower (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments portion of the SOX Insiders, including but capital stock of each Foreign Subsidiary that is not limited subject to a Lien securing the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretionExisting Agreements), (ii) any securities, dividends or distributions and any other right or property at any time and from time to time receivable or otherwise distributed in respect of or in exchange for any or all of the term “Collateral” shall not include foregoing and any Portfolio Investment, any Portfolio Assets other property substituted or any Excluded Proceeds, exchanged for the foregoing and (iii) any and all products or proceeds of the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 1 contract
Sources: Junior Subsequent Debtor in Possession Credit Agreement (Nutramax Products Inc /De/)
Collateral. Subject to 4.1 Without limiting the terms prior grant of the applicable Collateral Documentscontinuing security interest in, lien upon, and right of set off against, and assignment by Borrower to Agent, for itself and the ratable benefit of Lenders, to secure the payment and performance of the Obligations hereunderall Obligations, pursuant to Borrower hereby grants (and confirms its prior grant of) a Collateral Account Pledgecontinuing security interest in, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantlien upon, and shall pledge and/or assign by way a right of securityset off against, and hereby assigns (and confirms its prior assignment) to the Administrative Agent, for itself and the ratable benefit of each of the Secured PartiesLenders, as applicablesecurity, a first priority, security interest and ▇▇▇▇ in and on its interests in the followingall personal property of Borrower, whether now owned or hereafter acquired or arising:existing, and wherever located (together with all other collateral security for the Obligations at any time granted to or held or acquired by Agent or any Lender, collectively, the "Collateral"):
(ia) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoAccounts;
(iib) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveall general intangibles, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all Intellectual Property;
(c) all Inventory;
(d) all chattel paper, including, without limitation, all tangible and electronic chattel paper;
(e) all instruments, including, without limitation, all promissory notes;
(f) all documents;
(g) all deposit accounts (other than the Note Trustee Collateral Account);
(h) all letters of the records credit, banker's acceptances and similar instruments and including all letter-of-credit rights;
(i) all supporting obligations and all present and future liens, security interests, rights, remedies, title and interest in, to and in respect of the Guarantor concerning any Receivables and other Collateral, including rights and remedies under or relating to guaranties, contracts of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant suretyship, letters of credit and credit and other insurance related to the Credit Agreement if deposited Collateral, rights of stoppage in transit, replevin, repossession, reclamation and other rights and remedies of an unpaid vendor, lienor or credited secured party, goods described in invoices, documents, contracts or instruments with respect to, or otherwise representing or evidencing, Receivables or other Collateral, including returned, repossessed and reclaimed goods, and deposits by and property of account debtors or other persons securing the obligations of account debtors;
(j) all investment property (including securities, whether certificated or uncertificated, securities accounts, security entitlements, commodity contracts or commodity accounts) and monies, credit balances, deposits and other property of Borrower now or hereafter held or received by or in transit to a Collateral AccountAgent, any Lender or its Affiliates or at any other depository or other institution from or for the account of Borrower, whether for safekeeping, pledge, custody, transmission, collection or otherwise;
(k) all commercial tort claims, including, without limitation, those identified in the Information Certificate;
(l) to the extent usednot otherwise described above, pursuant to the terms all Receivables;
(m) all Records; and
(n) all products and proceeds of the Guarantor’s Governing Documentsforegoing, in any form, including insurance proceeds and all claims against third parties for loss or damage to purchase Portfolio Investments (or destruction of or other than Permitted Investments deposited in involuntary conversion of any kind or credited to nature of any such account), to make payments or distributions to Investors in accordance with all of the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Collateral.
4.2 Notwithstanding the foregoing or anything to the contrary set forth in this Credit Agreement Section 4.1 hereof, the types or items of Collateral shall not include:
(a) any interests in real property or improvements thereon or fixtures;
(b) any equipment or other Loan Document fixed assets;
(ic) the term “Collateral” shall not include Note Trustee Collateral Account and any moneys, securities and instruments deposited or required to be deposited in the Unfunded Capital Commitments Note Trustee Collateral Account pursuant to the Note Indenture;
(d) all products and proceeds of any and all of the SOX Insidersforegoing types or items of Collateral in clauses (a) through (d) of this Section 4.2, including but not limited to in each case, whether now or hereafter owned or acquired by any of Borrower and its Subsidiaries; and
(e) any rights or interest in any contract, license or license agreement covering personal property of Borrower, so long as under the right to draw down Investor Capital Contributions on terms of such Unfunded Capital Commitmentscontract, license or license agreement, or any other interests applicable law with respect thereto, the grant of a security interest or lien therein to Agent is prohibited and such prohibition has not been waived or the consent of the SOX Insidersother party to such contract, license or license agreement has not been obtained or a lawful waiver of such prohibition under applicable law has not been obtained; provided, that, the foregoing exclusion shall in no way be construed to apply if anyany such prohibition is unenforceable under Sections 9-406, unless so elected by 9-407 or 9-408 of the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements UCC or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinapplicable law.
Appears in 1 contract
Sources: Loan and Security Agreement (Anchor Glass Container Corp /New)
Collateral. Subject to the terms of time periods set forth in Section 8.17 and the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunderObligations, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantHedging Liability, and Funds Transfer, Deposit Account Liability and Foreign LCs shall pledge and/or assign (in the case of any Hedging Liability or Funds Transfer, Deposit Account Liability and Foreign LCs, unless otherwise notified by way of security, the Borrower to the Administrative Agent) be secured by valid, for the benefit of each perfected, and enforceable Liens on and security interests in (subject to Permitted Liens) all right, title, and interest of the Secured PartiesBorrower and each Guarantor in substantially all of their respective accounts, as applicablechattel paper, a first priorityinstruments, security interest documents, contracts, general intangibles, letter of credit rights, supporting obligations, deposit accounts, investment property, inventory, equipment, fixtures, Intellectual Property, money, cash and ▇▇▇▇ in Cash Equivalents, commercial tort claims, real estate and on its interests in the followingcertain other Property, whether now owned or hereafter acquired or arising:
, and all proceeds thereof, in each case subject to the terms and conditions of the Collateral Documents; provided, however, that: (i) any and all Unfunded Capital Commitments Liens on the Voting Stock of a Foreign Subsidiary or a Disregarded Domestic Person shall be limited to 65% of the Investorstotal outstanding Voting Stock (and 100% of non-Voting Stock) of any Foreign Subsidiary or any Disregarded Domestic Person owned directly by the Borrower or one of its Domestic Subsidiaries; and provided, whether now further, that no stock of any Foreign Subsidiary or hereafter committed, including but any Disregarded Domestic Person not limited to owned directly by the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
Borrower or one of its Domestic Subsidiaries shall be pledged hereunder; (ii) no Lien shall be granted with respect to any leasehold real property; (iii) no Liens shall be granted with respect to any fee-owned real property; (iv) no Liens shall be granted with respect to any (x) Equity Interests in partnerships, joint ventures and any other Subsidiary that is not a Wholly-owned Subsidiary if such Equity Interests cannot be pledged without the consent of one or more Persons that is not a Loan Party or an Affiliate thereof, but only to the extent relating that any such prohibition is not rendered ineffective pursuant to the Unfunded Capital Commitments Section 9-406, 9-407, 9-408 or 9-409 of the Investors constituting Collateral in clause UCC (ior any successor provision or provisions thereof) above, (x) the Constituent Documentsor any other applicable law, (y) the Subscription Agreements and Side Lettersassets of a Foreign Subsidiary or a Disregarded Domestic Person, if any, of such Investors and (z) margin stock (within the meaning of Regulation U issued by the Federal Reserve Board); (v) no Lien shall be granted with respect to any Property or assets which are specifically the subject of any permit, lease, license, contract or agreement to which any Loan Party is a party or any of its rights or interests thereunder if and all guaranties only to the extent that the grant of the lien and security interest under a Collateral Document (x) is prohibited by or a violation of any law, rule or regulation applicable to such Investors’ obligations Loan Party or (y) shall constitute or result in a breach of a term or provision of, or the termination of or a default under the Constituent Documents terms of, such permit, lease, license, contract or agreement (other than to the extent that any such law, rule, regulation, term or provision would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable law (including any debtor relief law or principle of equity)); (vi) no Liens shall be granted with respect to any Property or assets the pledge of which under a Collateral Document would require governmental consent, approval, license or authorization, but only to the extent that any such restriction on such pledge is not rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions thereof) or any other applicable law (provided, however, that the Collateral shall include (and Subscription Agreements including but not limited tosuch Lien shall attach) immediately at such time as, in each case as applicable, the consent referred to above is obtained or the contractual or legal provisions referred to above shall be obtained or shall no longer be applicable and to the extent severable, and shall attach immediately to any portion of clauses (x) such Equity Interests not subject to such consent specified in preceding clause (iv), (y) such Property and assets not specifically subject to such permit, lease, license, contract or agreement specified in preceding clause (v) and (z) such Property and assets not subject to such consent, approval, license or authorization specified in this clause (vi); and provided, further, that the exclusions referred to in clauses (iv), (v) and (vi) shall not include any and all representationsProceeds (as defined in the UCC) of any such Equity Interests, warrantiesProperty or assets); (vii) no Liens shall be granted in any “intent to use” trademark applications filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ Act, covenants and other agreements 15 U.S.C. § 1051, prior to the filing of such Investors a “Statement of Use” pursuant to Section 1(d) of the ▇▇▇▇▇▇ Act or guarantors contained therein, any and all duties and obligations an “Amendment to Allege Use” pursuant to Section 1(c) of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors ▇▇▇▇▇▇ Act with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description solely to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insidersextent, if any, unless so elected that, and solely during the period, if any, in which, a Lien therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law; (viii) no Liens shall be granted (A) with respect to any property or assets to the extent the burden or cost of obtaining such Lien therein outweighs the benefit of the security afforded thereby as reasonably determined by the Guarantor Borrower and the Administrative Agent, or (B) with respect to any other property or assets as shall be excluded from the Collateral pursuant to the Collateral Documents; and (ix) no Liens shall be granted with respect to any Property or assets to the extent that same would result in its discretionmaterial adverse tax consequences as reasonably determined by the Borrower; provided, further, that (a) no Lien shall be perfected with respect to any Property or asset with respect to which the Borrower and the Collateral Agent reasonably determine that the burden or cost of perfecting a security interest in such Property or asset outweighs the benefit of perfection afforded thereby to the Secured Creditors, (b) no foreign law governed security or pledge agreement shall be required, (c) no landlord lien waivers, bailee letters or similar agreements shall be required and (d) the security interest granted pursuant the Collateral Documents upon the following Collateral shall not be required to be perfected: (i) cash and Cash Equivalents, deposit, securities and commodities accounts (including securities entitlements and related assets), in each case to the extent a security interest therein cannot be perfected by the filing of a financing statement under the UCC; (ii) other assets the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, security interest in which requires perfection through control agreements; (iii) the term “Collateral” shall not include vehicles and any collateral posted or received in connection with the Swap Agreements, other assets subject to certificates of title; (iv) commercial tort claims; and (v) letter of credit rights, in each case, to the extent a security interest therein cannot be perfected by the filing of a financing statement under the UCC. The Borrower acknowledges and agrees that the Liens on the Collateral may shall be subject granted to the Administrative Agent for the benefit of the holders of the Obligations, the Hedging Liability, and the Funds Transfer, Deposit Account Liability and Foreign LCs and shall be valid and perfected first priority Liens subject, however, to the proviso appearing at the end of the preceding sentence and to Permitted Liens, (v) a Borrower in each case pursuant to one or the Guarantor may maintain other bank accounts or securities accounts more Collateral Documents entered into by such Persons, each in addition form and substance reasonably satisfactory to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinAgent.
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Collateral. Subject As security for the Obligations, the Debtor does hereby transfer, assign and convey to the terms Secured Party, and grant to the Secured Party a security interest in, all of the applicable Collateral Documentsits right, title and interest in, to secure and under the payment and performance of the Obligations hereunderfollowing property, pursuant to a Collateral Account Pledgewhether real, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the followingpersonal or mixed, whether now owned or hereafter acquired by the Debtor, and wherever located (hereinafter collectively called the "Collateral"):
(a) All Equipment, Inventory, materials, vehicles, supplies, fixtures, goods and other tangible personal property of the Debtor (hereinafter collectively called the "Tangible Collateral" except to the extent any lease or arising:agreement with respect thereto would be violated if they were covered by the terms of this Security Agreement or treated as Collateral under this Security Agreement);
(b) all existing and future leases and use agreements of personal property entered into by the Debtor as lessor with other Persons as lessees, including, without limitation, the right to receive and collect all rentals and other monies, including security deposits, at any time payable under such leases and agreements;
(c) any existing and future leases and use agreements of personal property entered into by the Debtor as lessee with other Persons as lessor, including, without limitation, the leasehold interest of the Debtor in such property, and all options to purchase such property or to extend any such lease or agreement, except any such leases or agreements which would be violated if they were covered by the terms of this Security Agreement or treated as Collateral for the purposes of this Security Agreement;
(d) any and all accessions and additions now or hereafter made or added to any of the property described in subparagraphs (a) through (c) above, any substitutions and replacements therefor, and all attachments and improvements now or hereafter placed upon or used in connection therewith, or any part thereof;
(e) all Accounts of the Debtor;
(f) all General Intangibles of the Debtor and any agreements constituting part of General Intangibles except such agreements which would be violated if they were covered by the terms of this Security Agreement or treated as Collateral for the purposes of this Security Agreement;
(g) all Deposit Accounts and all monies of the Debtor and all bank accounts in which such monies may at any time be held and all investments or securities in which such monies may at any time be invested and all certificates, instruments and documents from time to time representing or evidencing any such monies;
(h) all interest, dividends, proceeds, products, rents, royalties, issues and profits of any of the Collateral described in subparagraphs (a) through (h) above and all notes, certificates of deposit, checks and other instruments from time to time delivered to or otherwise possessed by the Secured Party for or on behalf of the Debtor in substitution for or in addition to any or all of said property;
(i) any all books, documents and all Unfunded Capital Commitments of the Investors, records (whether now on computer or hereafter committed, including but not limited otherwise) related to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
items described in subparagraphs (iva) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretothrough (h) above; and
(vj) any all products and all proceeds of any of the foregoing items described in subparagraphs (a) through (i) above. No submission by the Debtor to the Secured Party of a schedule or other particular identification of Collateral includingshall be necessary to vest in the Secured Party security title to and a security interest in each and every item of Collateral of the Debtor now existing or hereafter created and acquired, but rather such title and security interest shall vest in the Secured Party immediately upon the creation or acquisition of any item of Collateral hereafter created or acquired, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or necessity for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected further action by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets Debtor or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and by the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinParty.
Appears in 1 contract
Sources: Security Agreement (Windswept Environmental Group Inc)
Collateral. Subject to As collateral security for the terms of the applicable Collateral Documents, to secure the punctual payment and performance of the Obligations hereunderall Obligations, pursuant Pledgor hereby assigns, pledges and grants to Lender a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a continuing first priority, priority security interest and ▇▇▇▇ in and on its interests lien upon all right, title and interest of Pledgor in the following, whether now owned or hereafter acquired or arising:
and to (a) (i) each securities account identified on Schedule A hereto as the account of Pledgor together with any and all Unfunded Capital Commitments sub-accounts thereof, segregated accounts thereunder and cash, deposit or other accounts (including securities accounts) linked or related thereto, and any and all of their respective successor, replacement or substitute accounts (collectively, the Investors“Securities Accounts”), whether (ii) each term deposit account identified on Schedule A hereto as “Term Deposit Account”, together with any and all sub-accounts thereof, segregated accounts thereunder and cash, deposit or other accounts (including securities accounts) linked or related thereto, and any and all of their respective successor, replacement or substitute accounts (the “Term Deposit Accounts”) and (iii) each term deposit account identified on Schedule A hereto as “DCI Term Deposit Account”, together with any and all sub-accounts thereof, segregated accounts thereunder and cash, deposit or other accounts (including securities accounts) linked or related thereto, and any and all of their respective successor, replacement or substitute accounts (the “DCI Term Deposit Accounts” and, collectively with the Term Deposit Accounts and with the Securities Accounts, the “Collateral Accounts”), together in each case with all cash, DCIs, securities, shares, certificates, investment property, security entitlements, promissory notes, instruments, rights, receivables, general intangibles, payment intangibles, accounts, letter of credit rights, commodities and all other property and financial assets (collectively, “Assets”) of Pledgor now or hereafter committedheld or deposited in, including but not limited credited to, or paid or payable to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls Collateral Accounts or otherwise now or hereafter in the possession, custody or control of Lender, its Affiliates or Pershing, each Term Deposit Agreement with respect thereto;
to each Term Deposit Account and each DCI Transaction Document with respect to each DCI Term Deposit Account, (iib) to the extent relating to the Unfunded Capital Commitments in addition to, and not in derogation of the Investors constituting Collateral in clause (ia) above, (x) the Constituent Documents, (y) the Subscription Agreements those certain securities and Side Lettersother property, if any, of such Investors listed on Schedule B hereto with respect to Pledgor, or otherwise as agreed in writing between Pledgor and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x)Lender from time to time, (yc) and (z)all cash, securities or other Assets now or hereafter received or receivable in connection with any and all representationssale, warrantiesexchange, covenants and redemption or other agreements disposition of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and foregoing, (d) all security dividends, interest and other property with distributions paid or distributed on or in respect to such Collateral;
of any of the foregoing, (ive) each Collateral Accountall present and future rights, including but not limited claims, remedies and privileges of Pledgor pertaining to any of the foregoing, and (f) all funds additions to, substitutions for and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing foregoing, in each case whether now existing or hereafter arising or acquired (collectively, the “Collateral”); provided that, upon the occurrence of any Acceleration Event (regardless of whether notice has been given with respect thereto), the Collateral includingshall include (and Pledgor assigns, without limitationpledges and grants to Lender a continuing first priority security interest in and lien upon all right, title and interest of Pledgor in and to) any and all deposit accounts and securities accounts maintained by Pledgor with Lender, any of its Affiliates or Pershing, together with any and all Assets of Pledgor from time to time held or deposited therein, credited thereto, or paid or payable thereto or otherwise now or hereafter in the possession, custody or control of Lender, any of its Affiliates or Pershing. In addition to the security interest created under the preceding paragraph of this Section 1, in the case of an Australian Pledgor, such Australian Pledgor hereby charges by way of fixed charge its right, title and interest in and otherwise grants to Lender a continuing security interest in all assets credited to, deposited in or payable to each of the records Collateral Accounts (“Specific Security Interest”), as collateral security for the punctual payment and performance of all Obligations. For the Guarantor concerning any purposes of characterising the foregoing Collateral; excluding Specific Security Interest created in this paragraph under Australian law (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent usedrelevant), pursuant the Specific Security Interest is intended to operate as a fixed charge, and such Australian Pledgor’s right to deal with the terms assets the subject of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited Specific Security Interest is solely as set out hereunder and in or credited to any Securities Account Sole Control Agreement entered into by such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)Australian Pledgor. Notwithstanding anything else in the foregoing or anything to the contrary in Note, this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital CommitmentsAgreement, or any other interests Securities Account Sole Control Agreement, in the case of the SOX Insidersan Australian Pledgor, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be such Australian Pledgor agrees that subject to Permitted Liensthe consent of Lender, (v) a Borrower such Australian Pledgor’s right to withdraw cash or the Guarantor may maintain other bank accounts or securities accounts in addition to transfer any funds from the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject is conditional on payment in full of all amounts owing to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien Lender on any property that is not “Collateral”account whatsoever, except in connection with any Swap Agreement, as provided thereinwithout set-off or deduction.
Appears in 1 contract
Collateral. Subject to As collateral security for the terms prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the applicable Collateral DocumentsSecured Obligations, whether now existing or hereafter from time to secure the payment time arising, each Obligor hereby pledges and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, grants to the Administrative Agent, for the benefit of each of the Secured Parties, Parties as applicablehereinafter provided, a first priority, security interest in all of such Obligor's right, title and ▇▇▇▇ in interest in, to and on its interests in under the followingfollowing property, whether now owned by such Obligor or hereafter acquired and whether now existing or arisinghereafter coming into existence (all, subject to the exclusions set forth in Section 3.02, being collectively referred to herein as the "Collateral"):
(a) all Accounts, all Deposit Accounts, all Instruments, all Documents, all Chattel Paper (whether tangible or electronic), all Inventory, all Equipment, all Fixtures, all Letter-of-Credit Rights, all Investment Property, all Payment Intangibles, Software and all other General Intangibles whatsoever, including all Intellectual Property;
(b) all Investment Property and Financial Assets;
(c) all rights of such Obligor under or relating to the FCC Licenses and the proceeds of any FCC Licenses, provided that such security interest does not include at any time any FCC License to the extent (but only to the extent) that at such time the Administrative Agent may not validly possess a security interest therein pursuant to the Communications Act of 1934, as amended, and the regulations promulgated thereunder, as in effect at such time, but such security interest does include, to the maximum extent permitted by law, all rights incident or appurtenant to the FCC Licenses and the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of the FCC Licenses;
(d) the Lender Collateral Account and the balance from time to time therein;
(e) all other tangible and intangible personal property whatsoever of such Obligor (other than FCC Licenses, as to which clause (c) above shall be applicable);
(f) the Pledged Debt;
(g) the shares of common and preferred stock of, or partnership and other ownership interest in, the Issuers identified in Annex 3 under the name of such Obligor and all other shares of capital stock, or partnership and other ownership interest, of whatever class or character of any Issuer, now or hereafter owned by such Obligor, and all certificates evidencing the same (collectively, the "Pledged Equity"), together with, in each case:
(i) all shares, securities, moneys or property representing a dividend on any and all Unfunded Capital Commitments of the InvestorsPledged Equity, whether now or hereafter committedrepresenting a distribution or return of capital upon or in respect of the Pledged Equity, including but not limited or resulting from a split-up, revision, reclassification or other like change of the Pledged Equity or otherwise received in exchange therefor, and any subscription warrants, rights or options issued to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with holders of, or otherwise in respect thereto;of, the Pledged Equity; and
(ii) to without affecting the extent relating to obligations of such Obligor under any provision prohibiting such action hereunder or under any Loan Document, in the Unfunded Capital Commitments event of any consolidation or merger in which an Issuer is not the surviving entity, all ownership interests of any class or character of the Investors constituting Collateral in successor entity (unless such successor entity is such Obligor itself) formed by or resulting from such consolidation or merger (the Pledged Equity, together with all other certificates, shares, securities, properties or moneys as may from time to time be pledged hereunder pursuant to this clause (ii) and clause (i) above, (x) above being herein collectively called the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x"Equity Collateral"), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(vh) all Proceeds, products, offspring, accessions, rents, profits, income, benefits, substitutions and replacements of and to any of the Collateral and, to the extent related to any Collateral, all books, correspondence, credit files, records, invoices and other papers, including all proceeds tapes, cards, computer runs and other papers and documents in the possession or under the control of such Obligor or any computer bureau or service company from time to time acting for such Obligor; provided that (i) in the case of any of the foregoing Collateral includingthat consists of general or limited partnership interests in a general or limited partnership, without limitationthe security interest hereunder shall be deemed to be created only to the maximum extent permitted under the applicable organizational instrument pursuant to which such partnership is formed, all and (ii) in the case of the records of the Guarantor concerning any of the foregoing Collateral; excluding that consists of capital stock or other ownership interests in any Foreign Subsidiary (A) other than a Special Purpose Foreign Subsidiary), the security interest hereunder shall be limited to 65% of the voting stock of such Subsidiary and 100% of any funds properly withdrawn from a Collateral Account other capital stock of such Subsidiary (or that could such greater percentage of such stock of such Foreign Subsidiary as shall be withdrawn agreed to by the Obligors pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms requirements of Section 5.11 of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 1 contract
Collateral. Subject to the terms of time periods set forth in Section 8.17 and the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunderObligations, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantHedging Liability, and Funds Transfer, Deposit Account Liability and Foreign LCs shall pledge and/or assign (in the case of any Hedging Liability or Funds Transfer, Deposit Account Liability and Foreign LCs, unless otherwise notified by way of security, the Borrower to the Administrative Agent) be secured by valid, for the benefit of each perfected, and enforceable Liens on and security interests in (subject to Permitted Liens) all right, title, and interest of the Secured PartiesBorrower and each Guarantor in substantially all of their respective accounts, as applicablechattel paper, a first priorityinstruments, security interest documents, contracts, general intangibles, letter of credit rights, supporting obligations, deposit accounts, investment property, inventory, equipment, fixtures, Intellectual Property, money, cash and ▇▇▇▇ in Cash Equivalents, commercial tort claims, real estate and on its interests in the followingcertain other Property, whether now owned or hereafter acquired or arising:
, and all proceeds thereof, in each case subject to the terms and conditions of the Collateral Documents; provided, however, that: (i) any and all Unfunded Capital Commitments Liens on the Voting Stock of a Foreign Subsidiary or a Disregarded Domestic Person shall be limited to 65% of the Investors, whether now total outstanding Voting Stock (and 100% of non-Voting Stock) of any Foreign Subsidiary or hereafter committed, including but any Disregarded Domestic Person owned directly by the Borrower or one of its Domestic Subsidiaries and provided further that no stock of any Foreign Subsidiary or any Disregarded Domestic Person not limited to owned directly by the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
Borrower or one of its Domestic Subsidiaries shall be pledged hereunder; (ii) no Lien shall be granted with respect to any leasehold real property; (iii) no Liens shall be granted with respect to any fee-owned real property other than as provided for in Section 4.3 below; (iv) no Liens shall be granted with respect to any (x) Equity Interests in partnerships, joint ventures and any other Subsidiary that is not a Wholly-owned Subsidiary if such Equity Interests cannot be pledged without the consent of one or more Persons that is not a Loan Party or an Affiliate thereof, but only to the extent relating that any such prohibition is not rendered ineffective pursuant to the Unfunded Capital Commitments Section 9-406, 9-407, 9-408 or 9-409 of the Investors constituting Collateral in clause UCC (ior any successor provision or provisions thereof) above, (x) the Constituent Documentsor any other applicable law, (y) the Subscription Agreements and Side Lettersassets of a Foreign Subsidiary or a Disregarded Domestic Person, if any, of such Investors and (z) margin stock (within the meaning of Regulation U issued by the Federal Reserve Board); (v) no Lien shall be granted with respect to any Property or assets which are specifically the subject of any permit, lease, license, contract or agreement to which any Loan Party is a party or any of its rights or interests thereunder if and all guaranties only to the extent that the grant of the lien and security interest under a Collateral Document (x) is prohibited by or a violation of any law, rule or regulation applicable to such Investors’ obligations Loan Party or (y) shall constitute or result in a breach of a term or provision of, or the termination of or a default under the Constituent Documents terms of, such permit, lease, license, contract or agreement (other than to the extent that any such law, rule, regulation, term or provision would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable law (including any debtor relief law or principle of equity)); (vi) no Liens shall be granted with respect to any Property or assets the pledge of which under a Collateral Document would require governmental consent, approval, license or authorization, but only to the extent that any such restriction on such pledge is not rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions thereof) or any other applicable law (provided, however, that the Collateral shall include (and Subscription Agreements including but not limited tosuch Lien shall attach) immediately at such time as, in each case as applicable, the consent referred to above is obtained or the contractual or legal provisions referred to above shall be obtained or shall no longer be applicable and to the extent severable, and shall attach immediately to any portion of clauses (x) such Equity Interests not subject to such consent specified in preceding clause (iv), (y) such Property and assets not specifically subject to such permit, lease, license, contract or agreement specified in preceding clause (v) and (z) such Property and assets not subject to such consent, approval, license or authorization specified in clause (vi) and, provided, further, that the exclusions referred to in preceding clauses (iv), (v) and (vi) shall not include any and all representationsProceeds (as defined in the Security Agreement) of any such Equity Interests, warrantiesProperty or assets); (vii) no Liens shall be granted in any “intent to use” trademark applications filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ Act, covenants and other agreements 15 U.S.C. § 1051, prior to the filing of such Investors a “Statement of Use” pursuant to Section 1(d) of the ▇▇▇▇▇▇ Act or guarantors contained therein, any and all duties and obligations an “Amendment to Allege Use” pursuant to Section 1(c) of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors ▇▇▇▇▇▇ Act with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description solely to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insidersextent, if any, unless so elected that, and solely during the period, if any, in which, a Lien therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law; (viii) no Liens shall be granted (A) with respect to any property or assets to the extent the burden or cost of obtaining such Lien therein outweighs the benefit of the security afforded thereby as reasonably determined by the Guarantor Borrower and the Administrative Agent, or (B) with respect to any other property or assets as shall be excluded from the Collateral pursuant to the Collateral Documents; and (ix) no Liens shall be granted with respect to any Property or assets to the extent that same would result in its discretionmaterial adverse tax consequences as reasonably determined by the Borrower; provided, further, that (a) no Lien shall be perfected with respect to any Property or asset with respect to which the Borrower and the Collateral Agent reasonably determine that the burden or cost of perfecting a security interest in such Property or asset outweighs the benefit of perfection afforded thereby to the Secured Creditors, (b) no foreign law governed security or pledge agreement shall be required, (c) no landlord lien waivers, bailee letters or similar agreements shall be required and (d) the security interest granted pursuant the Collateral Documents upon the following Collateral shall not be required to be perfected: (i) cash and Cash Equivalents, deposit, securities and commodities accounts (including securities entitlements and related assets), in each case to the extent a security interest therein cannot be perfected by the filing of a financing statement under the UCC; (ii) other assets the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, security interest in which requires perfection through control agreements; (iii) the term “Collateral” shall not include vehicles and any collateral posted or received in connection with the Swap Agreements, other assets subject to certificates of title; (iv) commercial tort claims; and (v) letter of credit rights, in each case, to the extent a security interest therein cannot be perfected by the filing of a financing statement under the UCC. The Borrower acknowledges and agrees that the Liens on the Collateral may shall be subject granted to the Administrative Agent for the benefit of the holders of the Obligations, the Hedging Liability, and the Funds Transfer, Deposit Account Liability and Foreign LCs and shall be valid and perfected first priority Liens subject, however, to the proviso appearing at the end of the preceding sentence and to Permitted Liens, (v) a Borrower in each case pursuant to one or the Guarantor may maintain other bank accounts or securities accounts more Collateral Documents entered into by such Persons, each in addition form and substance reasonably satisfactory to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinAgent.
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Collateral. Subject As collateral security for the prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations, each Grantor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicableCreditors, a first priority, Lien on and security interest and ▇▇▇▇ in and on its interests to all of such Grantor’s right, title and interest in the followingfollowing personal property, whether now owned by such Grantor or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now existing or hereafter committedcoming into existence and wherever located (all being collectively referred to herein as “Collateral”; provided, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) abovehowever, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments Excluded Assets):
(a) the Instruments of such Grantor, together with all payments thereon or thereunder:
(b) all Accounts of such Grantor;
(c) all Inventory of such Grantor;
(d) all General Intangibles (including payment intangibles (as defined in the Uniform Commercial Code) and Software) of such Grantor;
(e) all Equipment (excluding Motor Vehicles) of such Grantor;
(f) all Documents of such Grantor;
(g) all Contracts of such Grantor;
(h) all Goods of such Grantor;
(i) all Investment Property of such Grantor;
(j) all Deposit Accounts of such Grantor, including, without limitation, the balance from time to time in all bank accounts maintained by such Grantor;
(k) Commercial Tort Claims of such Grantor specified on Schedule VII, as from time to time updated;
(l) all Proceeds, tort claims, products, accessions, rents, profits, income, benefits, substitutions, additions and replacements of and to any of the SOX Insidersproperty of such Grantor described in the preceding clauses of this Section 3 (including, without limitation, any proceeds of insurance thereon, insurance claims and all rights, claims and benefits against any Person relating thereto), other rights to payments not otherwise included in the foregoing and all books, correspondence, files, records, invoices and other papers, including but not limited to without limitation all tapes, cards, computer runs, computer programs, computer files and other papers, documents and records in the right to draw down Investor Capital Contributions on possession or under the control of such Unfunded Capital Commitments, Grantor or any computer bureau or service company from time to time acting for such Grantor; and
(m) all other interests tangible and intangible personal property of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinGrantor.
Appears in 1 contract
Collateral. Subject to the terms of the applicable Collateral Documents, to To secure the payment and performance of the Obligations hereunder, pursuant Borrower's obligations to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations thee Bank under the Constituent Documents and Subscription Agreements this Agreement including but not limited to, in each case of clauses (x)the borrowers obligations to repay the Loans and to pay interest, (y) and (z)fees, any and all representations, warranties, covenants expenses and other agreements of such Investors or guarantors contained thereinmounts described in this Agreement, and any and all duties other indebtedness, liabilities and obligations of such Investors the Borrower of any kind to the Bank whether in existence now or guarantors thereunder arising at any time in the future, the Borrower grants to the Bank a security interest in and any a lien upon all personal property (other than margin stock) and fixtures of the Borrower whether presently existing or existing in the future or presently owned or acquired in the future by the Borrower and whether or not subject to the Code, including, but not limited to, all goods, money, instruments, accounts, farm products, inventory, equipment, documents, chattel paper, investment property intangibles, and all rights to compel performance interest, dividends and enforce the provisions thereof against such Investors other distributions thereon paid and payable in cash or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any property, and all agreementsreplacements and substitutions for, instruments all accessions and other documents additions to, and all products and Proceeds of, all of every kind or description the foregoing (all of which are referred to as the "Collateral"). For purposes of the foregoing, margin stock shall be as defined in Regulation U promulgated by the Board of Governors of the Federal Reserve System, as amended from time to time. As used in this Agreement, the term Proceeds shall have the meaning set forth in Article 9 of the Uniform Commercial Code and, to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Accountnot otherwise included, including shall include, but not be limited to any and all funds and financial assets on deposit therein or credited thereto; and
to, (vi) any and all proceeds of any insurance, causes and rights of action or settlements thereof, escrowed amounts or property, judicial and arbitration judgments and awards, payable to the Borrower from or in respect of any person from time to time; (ii) any and all payments (in any form whatsoever) made or due and payable to the Borrower from time to time in connection the ownership of the foregoing Collateral Collateral, including, without limitation, all dividends, interest and other amounts collected or distributed on account of the Collateral or in connection with any requisition, confiscation, condemnation, seizure or forfeiture of all or any part of the Collateral by any governmental authority; (iii) all claims of the Borrower for losses or damages arising out of or relating to or for any breach of any agreements, covenants, representations or warranties or any default whether or not with respect to or under any of the Collateral (without limiting any direct or independent rights of the Bank with respect to the Collateral); and (iv) any and all other amounts from time to time paid or payable under or in connection with the collateral. Upon the Bank's request, the Borrower agrees to ▇▇▇▇ its books and records to reflect the Bank's security interest in the Collateral. The Borrower agrees to maintain such insurance on the Collateral in such amounts and covering such risks as is usually maintained by persons engaged in similar businesses on such personal property and fixtures in the same general areas in which the Borrower conducts its business. The borrower authorizes the Bank, at the Borrower's expense, to take all actions necessary to perfect, whether by filing, possession, control or otherwise, its security interest in the Collateral under any applicable law or regulation. The Borrower authorizes the Bank to file one or more financing statements and any amendments thereto without the Borrower's signature appearing thereon. The Borrower agrees to do all other necessary acts and file, record, make execute and deliver such deeds, agreements, notices, instruments and financing statements as the Bank may require to perfect the Bank's security interest in the Collateral and enforce its rights in the Collateral. The Borrower agrees not to change its name, its jurisdiction of organization if the Borrower is a registered organization, its place of business or if the Borrower has more than one place of business, its chief executive office or its primary residence if the borrower is an individual, remove any records of the Guarantor concerning Borrower relating to the Collateral or move any of the foregoing Collateral; excluding (A) Collateral without obtaining the prior written consent of the Bank. The Bank may, without any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant notice to the Credit Agreement if deposited or credited to a Collateral Account) to the extent usedborrower, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) whether or not any of the term “obligations of the Borrower are due, in its name or in the name of the borrower, demand, ▇▇▇ for, collect and receive any money or property at any time due, payable or receivable on or on account of or in exchange for, and may compromise, settle or extend the time of payment of, any of the demands or obligations represented by any of the Collateral” , and may also exchange any of the Collateral for other property upon the reorganization, recapitalization or other readjustment of the issuer, maker or other person who is obligated on or otherwise has liabilities with respect to the Collateral, and in connection therewith may deposit any of the Collateral with any committee or depository upon such terms as the Bank may in its discretion deem appropriate, and the Borrower does hereby constitute and appoint the Bank the Borrower's true and lawful attorney to compromise, settle or extend payment of said demands or obligations and exchange such Collateral as the Borrower might or could do personally; all without liability or responsibility for action herein authorized and taken o not taken in good faith. The Bank is entitled at any time in its discretion to notify and account debtor or the obligor on any instrument to make payment to it, regardless of whether or not the Borrower had been previously making collections on the Collateral, and the Bank may take control of any Proceeds of any of the Collateral. Upon request of the Bank, the Borrower shall receive and hold all Proceeds of the Collateral in trust for the Bank and not commingle any collections with any of its own funds and immediately deliver such collections to the Bank. The Bank may, in its sole discretion, take possession of the Collateral at any time, either prior to or subsequent to a default under any of the obligations. The Bank may, without any notice to the Borrower, in its discretion, and for its own benefit, lend, use, transfer or repledge to a third party al or any part of the Collateral by itself or commingled with the property of others, in bulk or otherwise. The Bank may, without any notice to the borrower, in its discretion, transfer, or cause to be transferred, all or any part of the Collateral to its name, or to the name of its nominee, vote the Collateral so transferred, and receive income and make or receive collections, including money, thereon and hold said income and collections as Collateral or apply said income and collections to any of the obligations of the Borrower, the manner and distribution of the application to be made as the Bank shall elect. With respect to the Collateral, the Bank shall have no duty to send notices, perform services, exercise any rights of collection, enforcement, conversion or exchange, vote, pay for insurance, taxes or other charges or take any action of any kind in connection with the management of the Collateral and its only duty with respect to the Collateral shall be to use reasonable care in its custody and preservation while in the Bank's possession, which shall not include any Portfolio Investmentsteps necessary to preserve, obtain, secure or acquire rights or property against or from any Portfolio Assets or any Excluded Proceeds, (iii) party. The Borrower represents that at the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) time the Collateral may be becomes subject to Permitted Liensthe Bank's security interest, (v) the borrower shall be the sole owner of the Collateral and shall be fully authorized and able to sell, thereafter, pledge and/or grant a Borrower or security interest in the Guarantor may maintain other bank accounts or securities accounts in addition Collateral to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent Bank and the Secured Parties Collateral shall not have be free and clear of all other claims, liens, charges, security interests and encumbrances except security interests in favor of the Bank or as permitted in writing by the Bank. The Borrower represents and warrants to the Bank that any Lien information furnished to the Bank regarding the collateral is true and correct on any property that the date hereof and is not “Collateral”complete in all material respects. The borrower agrees to keep the Collateral free and clear of all claims, except liens, charges, security interest and encumbrances other than the Bank's security interest or as permitted in connection with any Swap Agreement, as provided thereinwriting by the Bank.
Appears in 1 contract
Sources: Business Creditlink Agreement (International Freight Logistics LTD)
Collateral. Subject to the terms of the applicable Collateral Documents, to To secure the Borrower's prompt, punctual, and faithful payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements all and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured PartiesObligations to the Bank, as applicableBorrower hereby pledges, assigns and grants to the Bank a first priority, continuing security interest and ▇▇▇▇ in and on its interests in the followingfollowing assets and property, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investorseach item thereof, whether now or hereafter committedarising, owned or acquired by Borrower, due or to become due at any time in the future, or in which Borrower has an interest or obtains an interest, wherever such assets and property are located, together with all substitutions for and replacements of, additions and accessions to, and products and proceeds (of every kind and nature, cash and non-cash, including, without limitation, insurance proceeds and each type of property described below) of, any of the following (all of which together with any other property in which the Bank may in the future be granted a security interest to secure the Obligations, collectively are referred to as the "Collateral"):
(a) all accounts, accounts receivable, notes, drafts, acceptances and other forms of obligations and receivables and rights to payment for credit extended, or for goods sold or leased, or for services rendered, whether or not yet earned by performance, and all other debts, liabilities and obligations in whatever form, owing to Borrower, however arising or created, including but not limited without limitation, all "accounts" as defined in the Uniform Commercial Code of Massachusetts (the "UCC") and all rights of Borrower to draw under letters of credit; and all rights of Borrower in and to the right Inventory which gave rise to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors any Account, and all liens, guaranties and security granted to issue Investor Capital Calls or held by Borrower with respect theretoto an Account or other obligations owing to Borrower;
(iib) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveall inventory, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all Inventory in transit, all returned, rejected, or repossessed Inventory, and all Inventory detained from or rejected for entry into the United States, and all documents of the records of the Guarantor concerning title whether negotiable or non-negotiable) representing any of the foregoing Collateral; excluding foregoing;
(Ac) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to all contract rights, including without limitation, all "contract rights" as formerly defined in the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit AgreementUCC, and any right to payment under a contract not yet earned by performance and not evidenced by an instrument or chattel paper;
(Bd) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insidersall general intangibles, including but not limited without limitation, all goodwill, customer lists, judgments, licenses, permits, trade names, trademarks, patents, patent applications, copyrights, blueprints, drawings, designs, papers, rights to performance, proprietary processes, developmental ideas and concepts, and proprietary information and matter of any kind and nature, and all "general intangibles" as defined in the right to draw down Investor Capital Contributions on such Unfunded Capital CommitmentsUCC;
(e) all equipment, including without limitation, all "equipment" as defined in the UCC and all motor vehicles, rolling stock, machinery, furniture, office equipment, plant equipment, tools, dies, molds and all other goods, property and assets used or any other interests acquired for use in the operation or furtherance of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.Borrower's business;
Appears in 1 contract
Sources: Loan and Security Agreement (Student Advantage Inc)
Collateral. Subject The parties hereto intend that this Agreement constitute a security agreement and the transactions effected hereby constitute secured loans by the Lenders to the terms of Borrower under Applicable Law. As collateral security for the applicable Collateral Documentsprompt, to secure the complete and indefeasible payment and performance in full when due, whether by lapse of time, acceleration or otherwise, of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, Borrower hereby grants to the Administrative Agent, as agent for the benefit of each of the Secured Parties, as applicable, a first priority, lien on and security interest in all of the Borrower's right, title and ▇▇▇▇ in interest in, to and on its interests in 76 149194398v7 under the following, whether now existing or owned or hereafter arising or acquired or arising:
by the Borrower (collectively, the "Collateral"): (i) any the Receivables and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, related Contracts (including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors service the Receivables in connection therewith) and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveany accounts or obligations evidenced thereby, (x) the Constituent Documentsany guarantee thereof, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any all Collections and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements monies due (including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations payments made under any of the foregoing Collateral and any and all security and other property guarantee or similar credit enhancement with respect to any such Collateral;
(ivReceivables) each Collateral Account, including but not limited or to become due or received by any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds Person in payment of any of the foregoing Collateral including, without limitation, all of on or after the records of the Guarantor concerning any of the foregoing Collateralrelated Cutoff Date; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include Financed Vehicles related to such Receivables (including Financed Vehicles that have been repossessed) or in any Portfolio Investmentdocument or writing evidencing any security interest in any Financed Vehicle and each security interest in each Financed Vehicle securing each such Receivable, including all proceeds from any Portfolio Assets sale or any Excluded Proceeds, other disposition of such Financed Vehicles; (iii) the term “Account Collateral” shall not include ; (iv) the Borrower's rights to Collections on deposit in the Lockbox Account; (v) subject to the Control Agreement, the Borrower's rights to the Collection Account and the Hedge Reserve Account; (vi) all Hedge Collateral; (vii) all Receivable Files, the Schedule of Receivables, and all documents, agreements and instruments included in the Receivable Files, including rights of recourse of the Borrower against DFC and/or any collateral posted Dealer with respect to the Receivables; (viii) all Records, documents and writings evidencing or received related to the Receivables or the Contracts; (ix) all rights to payment under all Insurance Policies with respect to a Financed Vehicle, including any monies collected from whatever source in connection with any default of an Obligor with respect to a Financed Vehicle and any proceeds from claims or refunds of premiums on any Insurance Policy; (x) all guaranties, indemnities, warranties, insurance (and proceeds and premium refunds thereof) and other agreements or arrangements of whatever character from time to time supporting or securing payment of the Receivables, whether pursuant to the related Contracts or otherwise; (xi) all rights to payment under all service contracts and other contracts and agreements associated with the Receivables; 77 149194398v7 (xii) all security interests, Liens, guaranties and other encumbrances in favor of or assigned or transferred to the Borrower in and to the Receivables and Financed Vehicles; (xiii) all deposit accounts, monies, deposits, funds, accounts and instruments relating to the foregoing (subject to the Control Agreement); (xiv) the Purchase Agreement (including each Purchase Agreement Supplement) and remedies thereunder and the assignment to the Administrative Agent of all UCC financing statements filed by the Borrower against DFC under or in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions Purchase Agreement; and (vixv) all income and proceeds of the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 1 contract
Sources: Loan Agreement (Lithia Motors Inc)
Collateral. Subject All present and hereafter acquired property of Company wherever located and however described and whether or not constituting a fixture (including, without limitation, any and all present and future property), together, in each case, with all proceeds thereof, including without limitation all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts (including health-care-insurance receivables and credit card receivables), chattel paper (whether tangible or electronic), deposit accounts, letter-of-credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities and all other investment property, supporting obligations, any other contract rights or rights to the terms payment of money, insurance claims and proceeds, money, patents, patent applications, trademarks, trademark applications, copyrights, copyright applications, trade names, other names, software, and all general intangibles (including all payment intangibles and all rights in any social media accounts); together with all goodwill related to the foregoing property and all rights, liens, security interests and other interests which Company may at any time have by law or agreement against any account debtor, issuer or obligor obligated to make any such payment or against any of the applicable Collateral Documentsproperty of such account debtor, to secure the payment and performance of the Obligations hereunderissuer, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantor obligor, and shall pledge and/or assign by way of security, all other supporting obligations relating to the Administrative Agentforegoing, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the followingwhether now existing or hereafter arising, whether now owned or hereafter acquired or arising:
(i) any acquired; and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors products and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any proceeds of the foregoing Collateral property, including without limitation all accounts, instruments, chattel paper, investment property, letter-of-credit rights, letters-of-credit, other rights to payment, documents, deposit accounts, money, insurance proceeds and any general intangibles related to the foregoing property, and all security refunds of insurance premiums due or to become due under all insurance policies covering the foregoing property, all whether now owned or hereafter acquired, and other property wherever located, together with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)foregoing. Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinALL REGISTERED INTELLECTUAL PROPERTY SHOULD BE SPECIFICALLY IDENTIFIED BELOW. FAILURE TO SO LIST REGISTERED INTELLECTUAL PROPERTY DOES NOT EXCLUDE IT FROM COLLATERAL.
Appears in 1 contract
Sources: Revenue Loan and Security Agreement (INVO Bioscience, Inc.)
Collateral. Subject A. Luminent Mortgage Capital, Inc., and each other Luminent Entity hereby grants to the terms each member of the applicable ACC Group a continuing security interest in and first lien on, and a right of setoff with respect to, all of their respective securities, notes, mortgages, instruments, financial assets, monies, trust receipts or other property whenever acquired and all distributions thereon and proceeds thereof, whenever the same is held or carried for the Luminent Group by a member of the ACC Group or any of such group’s agents or pledged, lent or sold in a Transaction by Luminent Mortgage Capital, Inc. to any member of the ACC Group entered into heretofore or at any time in the future (collectively the “Collateral”). The Collateral Documents, to secure secures the prompt and full payment and performance of any and all present and future obligations and liabilities of each member of the Obligations hereunderLuminent Group to each member of the ACC Group, whether pledged pursuant to a Collateral Account PledgeTransaction Document or otherwise (including without limitation obligations and liabilities under any Transactions), a Security Agreementwhether matured, unmatured, liquidated, unliquidated, fixed or contingent (together with interest at the rate provided under any agreement evidencing the same (or if not so provided, at the rate described in Section 5(c)), and any allowed costs and fees, the related financing statements and “Obligations”).
B. All property of the other related documents, Luminent Group held by the Guarantor ACC Group shall grant, and shall pledge and/or assign by way be held in the nature of a deposit for security, . Except to the Administrative Agentextent otherwise expressly provided in a Transaction Document, Collateral held by or for the benefit of, or pledged to any member of the ACC Group, shall be deemed held by or for the benefit of, or pledged to, such entity for its own account or as agent and/or custodian for the account of another ACC Entity (or ACC Entities), as applicable. Notwithstanding the foregoing, this provision shall not be construed in a manner which conflicts with ACC’s requirement to obtain or maintain a certain level of margin with respect to any Transaction.
C. All Collateral legally held by any ACC Entity (either directly or through an agent) shall be held both for itself and for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent ACC Entities and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinACC Group.
Appears in 1 contract
Sources: Collateral Security, Setoff and Netting Agreement (Luminent Mortgage Capital Inc)