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all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing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 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. (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 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. 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 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 (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 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 (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 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 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 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 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 Borrower hereby grants to Bank a security interest in all of its inventory of: _X_ New Motor Vehicles (now existing or hereafter acquired) _X_ Used Motor Vehicles (now existing or hereafter acquired) including all parts and accessories added to vehicles, now existing or hereafter acquired by Borrower, including any such goods as may be leased or held for leasing, together with any and all accounts and proceeds arising from the terms sale, lease or disposition of the applicable Collateral Documentssaid property and all returned, to secure the payment refused and performance of the Obligations hereunderrepossessed goods, 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 all monies received from manufacturers by way of securitycredits, refunds or otherwise with respect to the Administrative AgentCollateral, for the benefit and all proceeds thereof (Collateral) to secure all debt 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) Borrower to Bank under any and all Unfunded Capital Commitments present and future Advances of whatever kind and further including but not limited to the Investors, whether Line and all other debt and other obligations of Borrower to Bank of any nature now existing or hereafter committedarising, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments debt arising directly between Borrower and Bank or acquired outright, conditionally or as Collateral security 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) aboveanother by Bank, (x) the Constituent Documentsabsolute or contingent, (y) the Subscription Agreements and Side Lettersjoint or several, if anysecured or unsecured, of such Investors and (z) any and all guaranties of such Investors’ obligations due or not due, contractual or tortious, liquidated or unliquidated, arising under the Constituent Documents operation of law or otherwise, direct or indirect, whether incurred directly or as part of a partnership, association or other group, or whether incurred as principal, surety, indorser, accommodation party or otherwise. Borrower will execute and Subscription Agreements including but not limited todeliver any documents, in each case of clauses (x)instruments or agreements required by Bank to evidence debt hereunder, (y) grant, perfect and (z)preserve the security interest, 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 carry out the terms of this Agreement. The security interest herein described is also evidenced by a Security Agreement between Borrower and Bank, and in the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to event of any such account), to make payments or distributions to Investors in accordance with conflict between 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”terms thereof, except in connection with any Swap Agreement, as provided thereinthe terms hereof will apply.
Appears in 3 contracts
Sources: Floor Plan Agreement (Sonic Automotive Inc), Floor Plan Agreement (Sonic Automotive Inc), Floor Plan Agreement (Sonic Automotive 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 (a) The due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Guarantees when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the terms of extent permitted by law), if any, on the applicable Collateral Documents, to secure Notes and the payment Guarantees and performance of all other obligations under this Indenture, including, the Obligations hereunderobligations of the Issuer and the Guarantors under the Security Documents, shall be secured by a Lien on the Collateral on an equal basis with the Senior Credit Facility and any other First Lien Obligations, as provided in this Indenture and the Security Documents to which the Issuer and the Guarantors, as the case may be, shall be or shall have become parties to simultaneously with the execution of this Indenture and will be secured by all of the Collateral pledged pursuant to a Collateral Account Pledge, a the Security Agreement, the related financing statements Documents hereafter delivered as required or permitted by this Indenture and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative AgentSecurity Documents. The Trustee, for the benefit of each the Holders, hereby appoints JPMorgan Chase Bank, N.A., as the initial Collateral Agent, and the Collateral Agent is hereby authorized and directed to execute and deliver the Security Documents. The Issuer and the Guarantors hereby agree that the Collateral Agent shall hold the Collateral in trust for the benefit of all of the Secured Parties, as applicable, a first priority, security interest Holders 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 toTrustee, 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 Security Documents.
(b) Each Holder, by its acceptance of any Notes and the Guarantees, (A) consents and agrees to purchase Portfolio Investments the terms of the Security Documents (including, without limitation, the provisions providing for foreclosure and release of Collateral and the automatic amendments, supplements, consents, waivers and other than Permitted Investments deposited modifications thereto without the consent of the Holders) as the same may be in effect or credited may be amended from time to any such account), to make payments or distributions to Investors time in accordance with their terms and this Indenture and authorizes and directs the terms hereof or for any other purpose permitted Collateral Agent to perform its obligations and exercise its rights under the Guarantor’s Governing Security Documents and this Credit Agreement, in accordance therewith and (B) authorizes the proceeds Trustee to enter into the Security Documents and appoint JPMorgan Chase Bank, N.A. as the initial Collateral Agent.
(c) The Trustee and each Holder, by accepting the Notes and the Guarantees, acknowledge that, as more fully set forth in the Security Documents, the Collateral as now or hereafter constituted shall be held for the benefit of such withdrawn funds (all the items Holders and the Trustee, and that the Lien of this Indenture and the Security Documents 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 respect of the SOX Insiders, including but not Trustee and the Holders is subject to and qualified and 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 in all respects 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 Security Documents and actions that 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 thereintaken thereunder.
Appears in 2 contracts
Sources: Indenture (Universal Health Services Inc), Indenture (Universal Health Services 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 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. 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 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 Borrower, Holdings and the other related documents, the Guarantor shall grantOperating Subsidiaries will (as applicable), and shall pledge and/or assign by way will cause each of securitythe Loan Parties (as applicable) 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 Partiesits right, as applicable, a first priority, security title and interest and ▇▇▇▇ in and on its interests in to the followingCollateral, 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 InvestorsBorrower and the Subsidiaries of Holdings and the Borrower owned by Holdings, whether now the Borrower or hereafter committedany Subsidiary of Holdings or the Borrower, including but not limited to the right to draw down Investor other than Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoStock of Unrestricted Subsidiaries of Holdings;
(iib) to the extent relating to the Unfunded Capital Commitments all of the Investors constituting Collateral Property (as such Property is more specifically described in clause (i) abovethe Security Documents), (x) the Constituent Documents, (y) the Subscription Agreements including tangible and Side Letters, if anyintangible property and real and personal property, of such Investors Holdings and (z) any the Borrower and all guaranties each Subsidiary of such Investors’ obligations under Holdings or the Constituent Documents and Subscription Agreements including but not limited toBorrower, 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 than Property of the foregoing Collateral and any and all security and other property with respect to such Collateral;
Unrestricted Subsidiaries of Holdings, including, without limitation, the following: Investments (iv) each Collateral Accountincluding certificates of deposit); accounts; inventory (including, without limitation, work in process); equipment; deposit accounts (including but not limited to any and all funds and financial assets on deposit therein or credited theretocash collateral accounts); and
brokerage accounts; instruments; Borrower-Owned Operating Assets; the Sprint Agreements; contract rights (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 Service Area Network, including rights of way, easements, leases and all related contracts, and all consents and waivers necessary or appropriate from all parties to such contracts, including, without limitation, all consents and waivers necessary or appropriate to permit the collateral assignment of or security interest granted 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); instruments; chattel paper; Permits; Intellectual Property; and intercompany Debt (including, without limitation, Debt of the Guarantor concerning Borrower or any of its Subsidiaries owed to or held by Holdings); provided, however, that Holdings shall not be required to grant to the Administrative Agent a security interest in the proceeds of the issuance of the Holdings Senior Notes; and
(c) all cash and non-cash proceeds and products of 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: Credit Agreement (Alamosa PCS Holdings Inc), Credit Agreement (Alamosa PCS Holdings 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 (a) The Secured Parties irrevocably authorize Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest at its option and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arisingdiscretion:
(i) to release any Lien (A) on all Collateral upon Full Satisfaction of all the Obligations and all Unfunded Capital Commitments termination of the InvestorsCommitments, whether now (B) with respect to any Collateral that is sold or hereafter committedotherwise Disposed of to a Person other than an Obligor pursuant to a Disposition permitted by Section 6.4 (other than any Disposition permitted by clause (d) of Section 6.4), including but not limited (C) on Receivables and Receivables Related Property to the right extent required pursuant to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and any Receivables Intercreditor Agreement, or (D) subject to issue Investor Capital Calls with respect theretoSection 10.2, as may be approved, authorized, or ratified in writing by the Required Lenders;
(ii) to the extent relating subordinate any Lien on any Collateral to the Unfunded Capital Commitments holder of any Lien on such property that is permitted by clause (f) or (k) of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, definition 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;“Permitted Encumbrances”; and
(iii) to enter into each Subordination Agreement, and perform all obligations thereunder, respectively, and to enter into any and all agreements, instruments and other documents amendments of every kind or description to such Subordination Agreements which do not materially modify the extent evidencing or supporting obligations under any rights of the foregoing Collateral Secured Parties thereunder, and any and all security and other property with respect agree to such Collateralbe bound by the terms thereof;
(iv) each to enter into any Receivables Intercreditor Agreement, and perform all obligations thereunder, respectively, and to enter into any amendments of such Receivables Intercreditor Agreement which do not materially modify the rights of the Secured Parties thereunder, and the Secured Parties agree to be bound by the terms thereof;
(v) to confirm in writing whether specific items or types of Obligors’ property are or are not included in the Collateral Account, including but not limited pursuant to any and all funds and financial assets on deposit therein or credited theretothe Loan Documents; and
(vi) to release any Guarantor from its obligations under any Guaranty Agreement if such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents.
(b) Upon request by Administrative Agent at any time, the Secured Parties will confirm in writing Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under any Guaranty Agreement pursuant to this Section 9.10.
(c) Administrative Agent, at the sole expense of Obligors, shall execute and deliver to the Obligors all releases or other documents reasonably necessary or desirable to evidence or effect any release of Liens or release of Guaranty Agreement authorized under Section 9.10(a); provided, that (i) Administrative Agent shall not be required to execute any document necessary to evidence such release authorized under clause (i)(B) or (v) of Section 9.10(a) unless a Responsible Officer of Administrative Borrower shall certify in writing to Administrative Agent that the transaction requiring such release is permitted under the Loan Documents (it being acknowledged that Administrative Agent may rely on any such certificate without further enquiry), (ii) Administrative Agent shall not be required to execute any document necessary to evidence such release on terms that, in Administrative Agent’s opinion, would expose Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Lien without recourse, representation, or warranty, and (iii) no such release shall in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Obligors in respect of) all interests retained by Obligors, including, the proceeds of any of the foregoing Collateral including, without limitationsale, all of the records which shall continue to constitute part of the Guarantor concerning Collateral. To the extent Administrative Agent is required to execute any releases or other documents in accordance with this Section 9.10(c), Administrative Agent shall do so promptly upon request of Borrowers without the consent or further agreement of any Secured Party.
(d) Administrative Agent shall have no obligation whatsoever to any of the foregoing Secured Parties to assure that the Collateral exists or is owned by any Obligor or its Subsidiaries or is cared for, protected, or insured or has been encumbered, or that Administrative Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or to continue exercising, any of the rights, authorities and powers granted or available to Administrative Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral; excluding , or any act, omission, or event related thereto, subject to the terms and conditions contained herein, Administrative Agent may act in any manner it may deem appropriate, in its sole discretion given Administrative Agent’s own interest in the Collateral in its capacity as one of the Lenders and that Administrative Agent shall have no other duty or liability whatsoever to any Secured Party as to any of the foregoing, except as otherwise provided herein.
(e) The Secured Parties hereby irrevocably authorize Administrative Agent, based upon the instruction of the Required Lenders, to (i) consent to, credit bid or purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Section 363 of the Bankruptcy Code, (ii) credit bid or purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any sale or other disposition thereof conducted under the provisions of the UCC, including pursuant to Section 9-610 or 9-620 of the UCC, or (iii) credit bid or purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any other sale or foreclosure conducted by Administrative Agent (whether by judicial action or otherwise) in accordance with applicable law. In connection with any such credit bid or purchase, (A) the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims being estimated for such purpose if the fixing or liquidation thereof would not unduly delay the ability of Administrative Agent to credit bid or purchase at such sale or other disposition of the Collateral and, if such claims cannot be estimated without unduly delaying the ability of Administrative Agent to credit bid, then such claims shall be disregarded, not credit bid, and not entitled to any funds properly withdrawn from a Collateral Account interest in the asset or assets purchased by means of such credit bid) and the Secured Parties whose Obligations are credit bid shall be entitled to receive interests (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) in the asset or assets so purchased (or that could be withdrawn pursuant to in the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms Equity Interests of the Guarantor’s Governing Documents, acquisition vehicle or vehicles that are used to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any consummate such accountpurchase), 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) Administrative Agent, based upon 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 instruction of the SOX InsidersRequired Lenders, may accept non-cash consideration, including but not limited to the right to draw down Investor Capital Contributions on debt and equity securities issued by such Unfunded Capital Commitments, acquisition vehicle 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 vehicles and 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 therewith Administrative Agent and may reduce the Obligations owed to the Secured Parties shall not have (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) based upon the value of such non-cash consideration.
(f) The Secured Parties acknowledge and agree that, Rabobank or any Lien on of its Affiliates may at any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereintime be the Receivables Financier under the Receivables Financing Facility.
Appears in 2 contracts
Sources: Credit Agreement (Kellogg Co), Credit Agreement (WK Kellogg Co)
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 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 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 (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 (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 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 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 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 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 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. (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 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. 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 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 6.1 As security for the prompt payment in full and performance of, all of the Obligations, (i) the Borrower will grant to the terms Lender, a continuing general collateral lien upon, and security interest in, the Collateral pursuant to a security agreement in form and substance acceptable to the Lender, (ii) each Guarantor will execute and deliver to and in favour of the applicable Collateral Documents, to secure the payment and performance Lender an unlimited guarantee of the Obligations hereunderof the Borrower to the Lender, (iii) each Guarantor will grant to the Lender, a continuing general collateral lien upon, and security interest in, the Guarantor Collateral pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements security agreement in form and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, substance acceptable to the Administrative AgentLender, for the benefit of (iv) each of the Secured PartiesBorrower and Guarantors will execute and deliver to and in favour of the Lender, assignments of insurance and directions to pay in connection with the insurance requirements set out in Section 7.5 of this Financing Agreement, including concerning the Policies, in form and substance acceptable to the Lender, and (v) any other guarantees and security the Lender may require from the Borrower or the Guarantors relating to Accounts, Inventory, Other Collateral and Policies, the Collateral and the Guarantor Collateral, as applicable, a first priorityfrom time to time, at its sole discretion (all of which are hereinafter collectively referred to as the "Security Agreements").
6.2 The security interest interests granted under the Security Agreements shall extend and ▇▇▇▇ in attach to the Collateral and on its interests the Guarantor's Collateral, as applicable, upon the execution thereof.
6.3 The Borrower and the Guarantors covenant and agree to safeguard, protect and hold all Inventory for the Lender's account and make no disposition thereof except in the followingordinary course of its business or, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments if out of the Investorsordinary course of its business, whether now upon the prior written notice to the Lender. Upon a Default or hereafter committedan Event of Default, the Lender may exercise, in the Borrower's name, the rights of an unpaid seller, including but not limited to stoppage in transit, replevin, rescission and reclamation. Upon a Default or an Event of Default which is continuing and 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 request of the Investors constituting Collateral in clause (i) aboveLender, (x) the Constituent Documents, (y) Borrower and 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 Guarantors hereby agree 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) immediately forward any and all proceeds of Collateral or the Guarantor Collateral to the Depository Account, and to hold any such proceeds (including any notes and instruments), in trust for the Lender pending delivery to the Lender. The Borrower and the Guarantors agree to use their best efforts to obtain and deliver to the Lender, within 30 days after the Closing Date, a duly executed Access Agreement from each landlord of each premises leased by the Borrower or a Guarantor and at which Collateral or Guarantor's Collateral is located, and to provide to the Lender a weekly status update on any Access Agreement which is not delivered to the Lender within 30 days after the Closing Date.
6.4 The rights and security interests granted to the Lender under any Security Agreements are to continue in full force and effect, notwithstanding the termination of this Financing Agreement or the fact that the Revolving Loan Account may from time to time be temporarily in a credit position, until the final indefeasible payment in full to the Lender and performance of all Obligations and the termination of this Financing Agreement. Any delay or omission by the Lender to exercise any right hereunder shall not be deemed a waiver thereof, or be deemed a waiver of any other right, unless such waiver shall be in writing and signed by the Lender. A waiver on any one occasion shall not be construed as a bar to, or waiver of, any right or remedy on any future occasion.
6.5 Notwithstanding the Lender's security interests and to the extent that the Obligations are now or hereafter secured by any Assets other than the Collateral or by the guarantee, endorsement, assets or property of any other Person, the Lender shall have the right in its sole discretion to determine which rights, liens, security interests or remedies the Lender shall at any time pursue, foreclose upon, relinquish, subordinate, modify or take any other action with respect to, without in any way modifying or affecting any of them, or any of the foregoing Collateral including, without limitation, all Lender's rights hereunder.
6.6 Any balances to the credit of the records Borrower and any Collateral or the Guarantor Collateral in the possession or control of the Guarantor concerning Lender may be held by the Lender as security for any Obligations and applied in whole or partial satisfaction of such Obligations when due as it sees fit. The liens and security interests granted in the foregoing Collateral; excluding Security Agreements, and any other lien or security interest the Lender may have, shall secure payment and performance of all now existing and future Obligations (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to or, in the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms case of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited the Guarantors' obligations 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”respect thereof). 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 InsidersThe Lender may, 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) charge any or all of 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 Obligations 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 thereinRevolving Loan Account when due.
Appears in 2 contracts
Sources: Financing Agreement (Western Forest Products Inc.), Financing Agreement (Western Forest Products Inc.)
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 As security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of all Outstanding Obligations, and to induce Lender to enter into the Credit Agreement and to make the Loan in accordance with the terms of the applicable Collateral DocumentsCredit Agreement, Debtor hereby assigns, conveys, mortgages, pledges, hypothecates and transfers to Lender and hereby grants to Lender a continuing first priority security interest in, all of Debtor’s 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 each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in under the following, whether now owned existing or hereafter acquired incurred, created, arising or arising:entered into (all of which being hereinafter collectively called the “Collateral”):
(i) any and all Unfunded Capital Commitments Accounts of the InvestorsDebtor (provided that, 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 notwithstanding anything to the contrary in this Credit Security Agreement or in the Credit Agreement, any security interest granted to Lender in Debtor’s accounts receivable and cash will be subordinate to any security interest in such accounts receivable granted by Debtor to Debtor’s accounts receivable revolving credit lender (the “AR Lien”);
(ii) all Chattel Paper of Debtor;
(iii) all Contracts of Debtor;
(iv) all Documents of Debtor;
(v) all Equipment and Tangible Collateral of Debtor;
(vi) all General Intangibles of Debtor;
(vii) all Instruments of Debtor;
(viii) all Securities and letters of credit of Debtor;
(ix) all Inventory of Debtor;
(x) all Permits and Licenses of Debtor and the proceeds thereof, to the extent now or hereafter permitted by applicable law;
(xi) all leases and use agreements of personal property entered into by Debtor as lessor with other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments persons as lessees, and all rights of the SOX InsidersDebtor under such leases and agreements, including but not limited to the right to draw down Investor Capital Contributions on receive and collect all rentals and other moneys (including security deposits) at any time payable under such Unfunded Capital Commitmentsleases and agreements, whether paid or accruing before or after the filing of any petition by or against Debtor under the federal Bankruptcy Code;
(xii) all leases and use agreements of personal property entered into by Debtor as lessee with other persons as lessor, and all rights, titles and interests of Debtor thereunder, including the leasehold interest of Debtor in such property and all options to purchase such property or to extend any such lease or agreement;
(xiii) to the extent not described above, all fixtures of Debtor;
(xiv) all Copyrights, Patents and Trademarks of Debtor;
(xv) all moneys of Debtor, all Deposit Accounts of Debtor in which such moneys may at any time be invested and all certificates, instruments and documents of Debtor from time to time representing or evidencing any such moneys;
(xvi) all other goods and personal property of Debtor, whether tangible or intangible, now owned or hereafter acquired by Debtor or in which Debtor now has or hereafter acquires any rights and wherever located;
(xvii) all property of Debtor held by Lender, including all property of every description, now or hereafter in the possession or custody of or in transit to Lender for any purpose, including safekeeping, collection or pledge, for the account of Debtor, or as to which Debtor may have any other interests right or power;
(xviii) all insurance policies related to the foregoing; and
(xix) subject to the provisions of Section 2(b) below, to the extent not otherwise included, all Proceeds of each of the SOX Insidersforegoing and all accessions to, if anysubstitutions and replacements for, unless so elected by and rents, profits and products of each of the Guarantor foregoing and all books and records in its discretionwhatever media (whether on computer or otherwise) whether recorded or stored relating to each of the foregoing, (ii) and all equipment and general intangibles necessary or beneficial to retain, access or process 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 information contained 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” those books 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 thereinrecords.
Appears in 2 contracts
Sources: Security Agreement (Frankly Inc), Security Agreement (Frankly 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 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 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 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 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 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 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 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 Obligations, Hedging Liability, and Bank Product Liability shall be secured by (a) valid, perfected, and enforceable Liens of the applicable Collateral DocumentsAdministrative Agent on all right, to secure the payment title, and performance interest of each Borrower and each Guarantor, in all Ownership Interests held by such Person in each of its Subsidiaries and Permitted Joint Ventures, whether now owned or hereafter formed or acquired, and all proceeds thereof and (b) valid, perfected, and enforceable Liens of the Obligations hereunderAdministrative Agent on all right, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall granttitle, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit interest of each of the Secured PartiesBorrower and each Guarantor in all personal property, as applicablefixtures, a first priority, security interest and ▇▇▇▇ in 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 Investorsproceeds thereof, whether now or hereafter committedother than, including but not limited with respect 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 foregoing clauses (x), (ya) and (zb), any and all representationsNon-Collateral Assets; provided, warrantieshowever, 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 that: (i) the term “Collateral” shall not include the Unfunded Capital Commitments Lien of the SOX InsidersAdministrative Agent on Property subject to a Capital Lease or conditional sale agreement or subject to a purchase money lien, including but not limited in each instance to the right extent permitted hereby, shall be subject to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests the rights of the SOX Insiders, if any, unless so elected by the Guarantor in its discretionlessor or lender thereunder, (ii) until a Default or Event of Default exists and thereafter until otherwise required by the term “Collateral” Administrative Agent or the Required Lenders, Liens on local ▇▇▇▇▇ cash deposit accounts maintained by any Borrower and its Subsidiaries in proximity to their operations need not be perfected provided that the total amount on deposit at any one time not so perfected, exclusive of Non-Collateral Assets, shall not include any Portfolio Investmentexceed U.S. $500,000 in the aggregate, any Portfolio Assets or any Excluded Proceeds, and (iii) the term “Collateral” shall not include any collateral posted until a Default 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” Event of Default has occurred and such other accounts shall not be subject to control agreements or other restrictions is continuing and (vi) thereafter until otherwise required by the Administrative Agent and or the Secured Parties Required Lenders, Liens on vehicles which are subject to a certificate of title law need not be perfected provided that the total value of such property at any one time not so perfected shall not have any Lien on any property that is not “Collateral”, except exceed U.S. $6,000,000 in connection with any Swap Agreement, as provided thereinthe aggregate.
Appears in 2 contracts
Sources: Credit Agreement (Delek Logistics Partners, LP), Credit Agreement (Delek Logistics Partners, LP)
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 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 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. 715000788 12406500715000788 12406500
(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 2 contracts
Sources: Fifth Amendment and Waiver Agreement (Samson Resources Corp), Fifth Amendment and Waiver Agreement (Samson Resources 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. 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 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 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 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: all Receivables and all letter of credit rights and insurance relating to such Receivables; all Purchase Agreements; all documents of title with respect to any Qualified Commodity including, without limitation, warehouse receipts (both tangible and electronic); all storage agreements relating to Qualified Commodities; Renewable Identification Numbers; Hedging Accounts and Hedging Agreements; investment property, deposit accounts, Qualified Commodities, general intangibles relating to the terms foregoing; chattel paper, including leases for Precious Metals and all rights, title and benefit of the applicable Collateral DocumentsBorrower under such leases, rights to secure the payment merchandise and performance other goods which is represented by, arises from, or relates to any of the Obligations hereunderforegoing; supporting obligations and security interests relating to the foregoing; monies, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantpersonal property, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each interests in personal property of the Secured PartiesBorrower of any kind or description held by any Lender, as applicableand all dividends and distributions on or other rights in connection with any such property; supporting evidence and documents relating to any of the above-described property; and accessions and additions to, a first priorityand substitutions and replacements of, security interest any and ▇▇▇▇ all of the foregoing, 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) aboveSecured Obligations, (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 2 contracts
Sources: Credit Agreement (StoneX Group Inc.), Credit Agreement (StoneX Group Inc.)
Collateral. Subject To secure the full and complete payment and performance of the Obligations, Holdings and the Borrower will, and will cause each Subsidiary of the Borrower to, grant to the terms Administrative Agent for the benefit of the Administrative Agent and the Lenders a perfected, first priority Lien on all of the right, title and interest in and to their Properties as set forth below (as more specifically described in the Security Documents) whether now owned or hereafter acquired, pursuant to the Security Documents, including, without limitation, the following:
(a) all Capital Stock of the Borrower and each Subsidiary of the Borrower;
(b) all of the Property of the Borrower and each Subsidiary of the Borrower (as such Property is more specifically described in the Security Documents), including tangible and intangible Property and real and personal Property, 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; instruments; contract rights (including, without limitation, all contracts relating to the construction or operation of the Network, including rights of way, easements, leases and all related 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); instruments; chattel paper; Licenses; Intellectual Property; and intercompany Debt;
(c) all Debt (i) owed by the Borrower to any Subsidiary of the Borrower, (ii) owed by any Subsidiary of the Borrower to the Borrower or to any Subsidiary of the Borrower, or (iii) owed by Holdings to the Borrower or to any Subsidiary of the Borrower; and
(d) the building and fixtures comprising, and all equipment from time to time located at, the Data Centers, including, without limitation, all interests (including fee, leasehold and other interests) in real property on which any such Data Center is located if and to the extent that (i) any such real property interest is owned or leased by the Borrower or Holdings and (ii) the aggregate fair market value of such building and fixtures comprising, and all such equipment and other personal property located at, such Data Center located on such real property interest is $250,000 or more, provided, however, that neither Holdings nor the Borrower will be required to grant to the Administrative Agent, as security for the Obligations, a Lien on any leasehold interest in any such real property if and to the extent that such Lien is prohibited, at the insistence of the owner of such real property, under the lease agreement which creates such leasehold interest and the Borrower and Holdings are unable to obtain the consent of such owner to such Lien notwithstanding their commercially reasonable efforts to obtain such consent; and
(e) all cash and non-cash proceeds and products of any of the foregoing. The Collateral shall not include any of the following Property of the Borrower or Holdings as long as such Property is encumbered by any Permitted Liens (or, in the case of the Lucent Equipment, expected to be encumbered by November 30, 2000) other than Permitted Liens securing the Obligations ("Other Permitted Liens") and as long as such Property is not (1) Nortel Networks Equipment, Nortel Networks Software nor any other Property acquired with the proceeds of the Loans and (2) only in the case of clause (y) succeeding, furniture, fixtures, equipment or other personal property:
(x) any Property encumbered (or, in the case of the Lucent Equipment, expected to be encumbered by November 30, 2000) by purchase money Liens permitted by clause (g) of the definition of Permitted Liens;
(y) all buildings, improvements and structures comprising (as of the date of grant of the applicable Collateral DocumentsOther Permitted Lien), and any interest (whether fee, leasehold or other interest) of the Borrower in the land on which is located (as of the date of the grant of the applicable Other Permitted Lien), the Data Center located in Hazelwood, Missouri; and
(z) funds held back by a lender from the proceeds of a Debt Issuance in an escrow or collateral account for the purpose of paying interest on such Debt as it accrues; provided, however, that, if and when any of the foregoing Property referred in to secure clause (x), clause (y) or clause (z) is no longer encumbered by any Other Permitted Liens, then Holdings and the Borrower will, and will cause each Subsidiary of the Borrower to, promptly execute and deliver all Security Documents and to otherwise take such action as may be requested by the Administrative Agent to ensure that the Administrative Agent is granted and possesses a perfected, first priority Lien against such Property as security for the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations. Without the consent or agreement of any Lender, the related financing statements and Administrative Agent shall, upon the request of the Borrower, execute such releases or other related documents, terminations of Liens as may be necessary to terminate the Guarantor shall grant, and shall pledge and/or assign by way of security, Liens granted to the Administrative Agent, for Agent under the benefit of each Security Documents in any of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests Property described 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 foregoing 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 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) 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) specified in Annex 4 (each, a “Pledged Account”) as such Annex may be amended, modified or supplemented from time to time without the consent of any Secured Party by notice to the Collateral Agent; provided that any such amendment, modification or supplement that would have the effect of releasing any Pledged Account (other than any such change to effect a release of Collateral pursuant to Section 10.03) will require the consent of the Collateral Agent);
(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, Equity Interests, 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, Equity Interests, 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) any Equity Interests in directly- held Foreign Subsidiaries in excess of 65% of any class of Equity Interests of each such Foreign Subsidiary, (iii) any assets that are directly-held or indirectly-held by a Foreign Subsidiary or (iv) any property that, were it “Collateral” hereunder, would be subject to make payments or distributions release pursuant to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, Section 10.03(g); 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 (New Mountain Finance 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, each Obligor 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 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 under the following property and assets, and whether (except as expressly provided in the following, whether proviso in this Section 3) now owned by such Obligor or hereafter acquired and whether now existing or arising:hereafter coming into existence (all of the property and assets described in this Section 3 being collectively referred to herein as 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 theretoEquipment;
(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 New Mooresville Collateral;
(ivc) each all Fixtures;
(d) the Collateral AccountAccount and all Financial Assets and other property and balances credited thereto from time to time;
(e) all Qualified Consideration received by any Obligor pursuant to Section 1009 of the Indenture, including but not limited to any and all funds and financial assets on deposit therein notes or credited Instruments with respect thereto; and
(vf) any all Proceeds, products, substitutions and all proceeds replacements of and to any of the foregoing Collateral including(including Proceeds) and, 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 related to any such accountCollateral, all warranties, service or repair contracts, books, manuals, operations or users guides, correspondence, files, records, invoices, ledger sheets, ledger cards, files, computer software (owned by any Obligor or in which it has an interest), to make payments or distributions to Investors in accordance with computer programs, tapes, disks and other papers; PROVIDED that 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 (I) any Mooresville Excluded Equipment, unless and until, and then only to the Unfunded Capital Commitments extent that, such Mooresville Excluded Equipment shall have become New Mooresville Collateral, which New Mooresville Collateral shall be included in the definition of “Collateral”; (II) any Equipment acquired or constructed after the date hereof with assets other than the Collateral or Mortgaged Property or any proceeds thereof and initially located on any real property other than Original Real Property (the “Other Excluded Equipment”); (III) the Leased Equipment and the Prior Pledged Equipment (whether or not such Equipment is acquired by any Obligor after the date hereof free and clear from the lease or pledge relating thereto); (IV) any Proceeds from dispositions contemplated by Section 5.11(d), unless and until any such Proceeds are used to purchase Specified Collateral Assets (subject to clause (I) and (II) above), which Specified Collateral Assets shall be included in the definition of “Collateral”; and (V) any Fixtures constituting doors, wiring, heating, ventilating, air conditioning, sprinkler, plumbing, irrigating, elevators or escalators or other similar Fixtures used solely in the operation of buildings erected on land as leasable commercial real property; and NOTWITHSTANDING anything herein to the contrary, any Equipment (including any Equipment acquired or constructed after the date hereof but excluding the equipment described in clauses (III) and (V) above) located on any Original Real Property shall be presumed to be part 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” unless the Company shall not include any Portfolio Investment, any Portfolio Assets have certified that such Equipment is Mooresville Excluded Equipment or any Other Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Equipment pursuant to a Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition Certificate delivered 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
Collateral. Subject (a) Each of the Guarantors hereby 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 ratable 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 following property now owned or at any time hereafter acquired by such Guarantor or arisingin which such Guarantor now has or at any time in the future may acquire any right, title or interest (collectively, the "Collateral Pool"), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Guarantor Obligations:
(i) Telstar 6, Telstar 7 and 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 theretoReplacement Satellite;
(ii) to the extent relating to Availability Agreement, 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 TT&C Agreement 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 entered into pursuant to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoSection 11(b);
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of permitted by applicable law, the foregoing Collateral and any and all security and other property with respect to such CollateralFCC Licenses;
(iv) each Collateral Account, including but not limited all transponder lease agreements to any and all funds and financial assets on deposit therein or credited thereto; and
which such Guarantor is a party (v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of Master Lease Agreements);
(v) the records of Intercompany Notes;
(vi) the Guarantor concerning any of SatCom Collateral Account, the foregoing Collateral; excluding (A) any funds properly withdrawn from a Loral Satellite Collateral Account (or that could be withdrawn and any other collateral account established pursuant to the Credit Agreement if deposited or credited Collateral Agency Agreement;
(vii) the Transponder Transfer Agreements;
(viii) all Accounts, General Intangibles (including construction and purchase contracts) and Equipment, in each case solely to a the extent relating to any other item in the Collateral AccountPool;
(ix) all books and records pertaining to the Collateral Pool;
(x) the Equity Interests of any Subsidiary of such Guarantor; and
(xi) to the extent usednot otherwise included, pursuant to the terms all Proceeds and products of any and all of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited foregoing and all collateral security and guarantees given by any Person with respect to any such account)of the foregoing.
(b) So long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Guarantors shall be permitted 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 remove any Satellite or transponder 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) Satellite from the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition Pool upon delivery to the Collateral Accounts that will not Agent of Acceptable Collateral, together with such appraisals thereof as may be considered “Collateral” required by and such other accounts shall not be subject satisfactory to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties Majority Lenders, and (ii) remove any Satellite or transponder on any Satellite from the Collateral Pool, in each case, provided that no such removal shall not be permitted (A) if, after giving effect thereto, the Collateral Coverage Ratio, as computed after giving effect to such removal or substitution, would be less than 1.20 to 1.00 and (B) unless the Acceptable Collateral (if any) is then subject to a fully perfected security interest in favor of the Collateral Agent pursuant to this Guarantee, and provided further that (x) no more than 25% of the transponders on any Satellite may be removed (except in connection with the removal of a Satellite) from the Collateral Pool pursuant to clause (ii) above and (y) for purposes of determining compliance with clause (A) above and Section 11(a), the Appraised Value of any Satellite shall be immediately reduced by the proceeds received from any such sale of any transponders on such Satellite.
(c) So long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Guarantors shall be permitted to make cash withdrawals from the SatCom Collateral Account, the Loral Satellite Collateral Account or any other collateral account maintained by the Guarantors in connection with the Guarantee.
(d) The Collateral Agent shall release the Collateral on the Release Date. Any Lien on any property that which is not “Collateral”, except removed from the Collateral Pool in connection accordance with any Swap Agreement, as provided thereinSection 3(b) shall automatically be released upon such removal.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Loral Space & Communications LTD)
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 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 (ii2) 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 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, Pledge and Security Agreement (Sierra Income Corp)
Collateral. Subject to (a) Such Guarantor is the terms sole beneficial owner of the applicable Collateral Documentsin which it purports to grant a security interest pursuant to Section 4 hereof and no Lien exists or will exist upon such Collateral at any time (and no right or option to acquire the same exists in favor of any other Person), to secure the payment and performance except for Liens permitted under Section 8.06 of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, Credit Agreement and except for the related financing statements pledge and security interest in favor of 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 Lenders created or provided for herein, which pledge and security interest constitute a first priority perfected pledge Subsidiary Guarantee and Security Agreement - 7 148 and security interest (except as otherwise provided herein) in and to all of such Collateral (except for such Liens as are permitted under Section 8.06 of the Secured PartiesCredit Agreement).
(b) The Pledged Stock represented by the certificates identified under the name of such Guarantor in Annex 1 hereto is, as applicable, and all other Pledged Stock in which such Guarantor shall hereafter grant a first priority, security interest pursuant to Section 4 hereof will be, duly authorized, validly existing, fully paid and ▇▇▇▇ in non-assessable and on its interests in none of such Pledged Stock is or will be subject to any contractual restriction, or any restriction under the followingcharter or by-laws of the respective Issuer of such Pledged Stock, whether now owned or hereafter acquired or arising:upon the transfer of such Pledged Stock (except for any such restriction contained herein).
(ic) any Except as permitted under the Credit Agreement and all Unfunded Capital Commitments of indicated on Annex 1, the Investors, whether now or hereafter committed, including but not limited to Pledged Stock represented 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;
(ii) to certificates identified under 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, name 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, Guarantor 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, Annex 1 hereto constitutes all of the records issued and outstanding shares of capital stock of any class of the Issuers beneficially owned by such Guarantor concerning any on the date hereof (whether or not registered in the name of such Guarantor) and said Annex 1 correctly identifies, as at the date hereof, the respective Issuers of such Pledged Stock, the respective class and par value 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 shares comprising 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 Pledged Stock 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 thereinrespective number of shares (and registered owners thereof) represented by each such certificate.
Appears in 1 contract
Sources: Credit Agreement (Suiza Foods Corp)
Collateral. Subject The Borrower will (a) warrant and defend the right, title and interest of the Lender 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 or for any other purpose permitted 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); (c) hold all escrow funds collected in respect of Mortgage Loans in trust, without commingling the Guarantor’s Governing Documents and this Credit Agreementsame 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 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 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 Lender or to draw down Investor Capital Contributions on such Unfunded Capital an Investor, of its Mortgage Notes, Mortgages, Purchase Commitments, or any Hedging Contracts, Master Commitments, 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 1 contract
Collateral. Subject to (a) As security for the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunderall obligations of every kind (including, 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 the obligation to make payments pursuant to Section 1 hereof) owed by Applicant to Bank of clauses America under the Letter of Credit, this Agreement, or otherwise, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due, howsoever created, arising or evidenced (xthe “Liabilities”), Applicant hereby assigns, pledges and grants to Bank of America a lien upon and a security interest for Bank of America’s benefit in, and recognizes and admits Bank of America’s unqualified right to: (yi) the possession and (z), disposal of any and all representationsItems, warrantiesall shipping documents, covenants and other agreements warehouse receipts, policies or certificates of such Investors or guarantors contained thereininsurance, 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 accompanying or description relative to any Items, and all Property (as defined below) covered, shipped, or stored under any Items or documents whether or not any Items, documents, or Property shall be released to Applicant, (ii) all claims which the extent evidencing or supporting obligations under Applicant may have against anyone else in connection with 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, any guarantees, indemnities, agreements or other undertakings, policies of insurance or assurances in connection therewith, (iii) all other Property (A) which, now or hereafter, is in Bank of America’s possession, control, or in transit to, or the pledge of which is at any time registered to, Bank of America or Bank of America’s agent or bailee for any reason or purpose or (B) in which, now or hereafter, Bank of America may have a security interest, securing any of the records Liabilities, (iv) all balances, credits, deposits, accounts or moneys, held by Bank of the Guarantor concerning America, now or hereafter, which Applicant owns or in which Applicant may have an interest, and (v) all dividends, distributions and other rights in or with respect to, and substitutions for and products and proceeds of, any of the foregoing being referred to collectively as the “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”. In addition, 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 Applicant agrees: (i) that Applicant shall keep all Collateral that is customarily insured against loss, damage, theft and other risks, insured in amounts and by companies satisfactory to Bank of America, and either assign the term “Collateral” shall not include policies and certificates of insurance to Bank of America or make the Unfunded Capital Commitments loss or adjustment payable to Bank of America, and hold as Bank of America’s agent in trust for Bank of America any proceeds received by Applicant under such policies and promptly deliver the SOX Insiders, including but not limited same to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests Bank of the SOX Insiders, if any, unless so elected by the Guarantor in its discretionAmerica, (ii) the term “Collateral” shall not include that, if Bank of America at any Portfolio Investmenttime deems such insurance inadequate for any reason, any Portfolio Assets or any Excluded ProceedsBank of America may procure such insurance as Bank of America deems necessary, at Applicant’s expense, and (iii) the term “Collateral” shall not include any collateral posted to furnish to Bank of America such certificates or received in connection other evidence 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 foregoing as Bank of America may request. “CollateralProperty” includes any rights or interests in goods, merchandise, documents, securities, funds, chooses-in-action and such any and all other accounts shall not be subject to control agreements forms of property, whether tangible or other restrictions intangible, real, personal or mixed, and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”proceeds thereof, except in connection with any Swap Agreement, as provided thereinwhich are owned by Applicant.
Appears in 1 contract
Collateral. Subject to As collateral and security for the terms of the applicable Collateral DocumentsLoan and any and all other Indebtedness, 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 Borrower shall grant, and hereby grants to Bank, and its respective successors and assigns, a lien and security interest (which shall pledge and/or assign by way of securitybe a first and prior lien and security interest therein except as indicated therein), in and to the Administrative Agentfollowing described property, for together with any and all PRODUCTS and PROCEEDS thereof (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:"Collateral"):
(i) All present and future accounts, chattel paper, contract rights, documents, instruments, deposit accounts and general intangibles (including any right to payment for goods sold or leased or services rendered arising out of the sale or delivery of personal property or work done or labor performed by Borrower), now or hereafter owned, held, or acquired by Borrower, together with any and all Unfunded Capital Commitments books of the Investorsaccount, whether now or hereafter committed, including but not limited customer lists and other records relating in any way 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;
foregoing (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, computer software, whether on tape, disk, card, strip, cartridge or any other form), and in any case where an account arises from the sale or lease of goods or equipment.
(ii) All finished goods, equipment, fixtures and machinery of whatsoever kind and character now or hereafter possessed, held, acquired or owned by Borrower and held for resale, lease or ordinary disposition in the course of Borrower's business, together with all replacements, accessories, additions, substitutions and accessions to all of the foregoing, all records of the Guarantor concerning relating in any of way to the foregoing Collateral; excluding (Aincluding, without limitation, any computer software, whether on tape, disk, card, strip, cartridge or any other form).
(iii) 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 usedAll of Borrower's right, pursuant to the terms of the Guarantor’s Governing Documentstitle and interest in, to purchase Portfolio Investments and under (other than Permitted Investments deposited in a) present or credited to any such account)future leases, to make payments or distributions to Investors in accordance with the terms hereof or for rental contracts and any other purpose permitted contracts for the use or operation of any equipment owned by Borrower (each a "Lease" collectively, "Leases") for and all rental payments and other monies from time to time payable to or receivable by Borrower under the Guarantor’s Governing Documents and this Credit AgreementLeases, including all proceeds thereof, and (Bb) all of Borrower's rights, powers and remedies under the proceeds Leases. Borrower agrees to execute such security agreements, assignments, deeds of such withdrawn funds (the items in (A) trust and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything other agreements and documents as Bank shall deem appropriate and otherwise require from time 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 time 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.more
Appears in 1 contract
Collateral. Subject (a) The Pledgor will cause the Pledged Limited Liability Company Interests or the Pledged Shares to constitute at all times 100% of the Capital Stock of each Issuer then outstanding.
(b) Unless an Event of Default shall have occurred and be continuing and the Administrative Agent has notified the Pledgor to the contrary, the Pledgor 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 other Loan Documents or any other instrument or agreement referred to herein or therein, provided that the Pledgor agrees that it will not vote the Collateral in any manner that is inconsistent with the terms of this Agreement, the Credit Agreement, the other Loan Documents or any such other instrument or agreement; and the Administrative Agent shall execute and deliver to the Pledgor or cause to be executed and delivered to the Pledgor all such proxies, powers of attorney, dividend and other orders, and all such instruments, without recourse, as the Pledgor may reasonably request for the purpose of enabling the Pledgor to exercise the rights and powers that it is entitled to exercise pursuant to this Section 4.03(b).
(c) The Pledgor shall be entitled to receive and retain any and all distributions and dividends paid in respect of the Collateral, provided, however, that any and all (A) distributions and interest paid or payable other than in cash in respect of, and instruments and other property received, receivable or otherwise distributed in respect of, or in exchange for, any Collateral, (B) distributions or dividends paid or payable in cash in respect of any Collateral in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid-in-surplus (other than distributions or dividends paid by KMNGL to the Pledgor in connection with the dissolution and liquidation of KMNGL), and (C) cash paid, payable or otherwise distributed in redemption of, or in exchange for any Collateral, shall be, and shall be forthwith delivered to the Administrative Agent to hold as, Collateral and shall, if received by the Pledgor, be received in trust for the benefit of the Administrative Agent, be segregated from the other property or funds of the Pledgor, and be forthwith delivered to the Administrative Agent as Collateral in the same form as so received (with any necessary endorsement).
(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 or any other Secured Party 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 other Loan Documents or any other agreement relating to such Secured Obligation, and the Administrative Agent so requires by notice to the Pledgor, all distributions and other dividends received by the Pledgor on the Collateral shall be paid directly by the Pledgor to the Administrative Agent and retained by it 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, Pledgor 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 distribution or dividend 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:
Pledgor (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 thereinPledgor.
Appears in 1 contract
Sources: Pledge Agreement (Kinder Morgan Energy Partners L P)
Collateral. Subject to 5.1 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 Agent for itself and the payment ratable benefit of Lenders, and performance of the Obligations hereunderconfirms, pursuant reaffirms and restates its prior grant to a Collateral Account PledgeAgent (as successor to Congress) of, a Security Agreement, the related financing statements continuing security interest in and the other related documents, the Guarantor shall granta lien upon, and shall pledge and/or assign by way a right of securitysetoff against, and hereby assigns to the Administrative Agent, for itself and the ratable benefit of each Lenders, as security, all of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether following now owned or and hereafter acquired or arising:existing assets and properties of such Borrower (which assets and properties, together with all other collateral security for the Obligations granted to or otherwise held or acquired by Agent or any Lender are referred to herein as 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 all contracts, contract rights, licenses, customer lists and other general intangibles 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 Receivables 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 Accountdescribed in this Section 5, 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 to the extent affixed to, or to be affixed to, any Inventory or other property described in this Section 5 for purposes of selling the same, or otherwise necessary or reasonably desirable in connection with the collection, sale or other disposition of the records of the Guarantor concerning Receivables or any of the foregoing Collateral; excluding other property described in this Section 5, 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, agreements or arrangements with sales agents, distributors or the like and/or consignees, warehouses or other third persons in possession of any Inventory, and guaranty or warranty claims with respect to Receivables or Inventory;
(Ac) all Inventory;
(d) all chattel paper, including, without limitation, all tangible and electronic chattel paper;
(e) all instruments that evidence or relate to any funds properly withdrawn from a Collateral Account Receivables or other property described in this Section 5, including, without limitation, all promissory notes that evidence or relate to any Receivables or other property described in this Section 5;
(f) all documents which relate to any Receivables or other property described in this Section 5 and documents of title with respect to any Inventory or which evidence or relate to indebtedness arising pursuant to Receivables or other property described in this Section 5;
(g) all Blocked Accounts, or any deposit account (or that could be withdrawn pursuant other account) used in connection with the collection of Receivables or other property described in this Section 5 or the remittance thereof to the Credit Agreement if deposited Agent or credited to a Collateral Accountany Lender, or containing proceeds of Receivables or other property described in this Section 5;
(h) to the extent usedall letters of credit, pursuant to the terms of the Guarantorbanker’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited acceptances and similar instruments and including all letter-of-credit rights relating to any such account), to make payments Receivables 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 property described in this Credit Agreement or any other Loan Document Section 5;
(i) the term “all supporting obligations and all present and future liens, security interests, rights, remedies, title and interest in, to and in respect of Receivables and other Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited (i) rights and remedies under or relating to guaranties, contracts of suretyship, letters of credit and credit and other insurance related 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 discretionCollateral, (ii) the term “Collateral” shall not include any Portfolio Investmentrights of stoppage in transit, any Portfolio Assets replevin, repossession, reclamation and other rights and remedies of an unpaid vendor, lienor or any Excluded Proceedssecured party, (iii) the term “Collateral” shall not include any collateral posted goods described in invoices, documents, contracts or received in connection instruments with the Swap Agreementsrespect to, (iv) the Collateral may be subject to Permitted Liensor otherwise representing or evidencing, (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 Receivables or other restrictions Collateral, including returned, repossessed and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”reclaimed goods, except in connection with any Swap Agreement, as provided therein.and
Appears in 1 contract
Sources: Loan and Security Agreement (Doe Run Resources Corp)
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 Domestic Subsidiaries to, grant to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest in all of its accounts, chattel paper, instruments, documents, books, records, letter-of-credit rights, inventory, machinery, equipment, financial assets, investment property, contract rights, deposit accounts, material trademarks, material patents, material copyrights, other material intellectual property, payment intangibles, other general intangibles, commercial tort claims, 100% of Equity Interests in its 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 and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not perfection in such collateral shall be 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;
extent that perfection may be obtained (iiw) to by the extent relating to the Unfunded Capital Commitments filing of the Investors constituting Collateral in clause (i) abovea centralized UCC-1 financing statement, (x) the Constituent Documentsby patent, trademark or copyright office filings, (y) the Subscription Agreements and Side Letters, if any, by possession of such Investors and stock certificates or (z) any and all guaranties of such Investors’ obligations under automatically pursuant to the Constituent Documents and Subscription Agreements including but not limited toUCC, 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 ii) 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 interest shall 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 (C) any assets with respect to which there are effective and enforceable legal restrictions against the granting of a security interest therein.
(b) The Borrower will, and will cause each of the Guarantors to execute and deliver and cause to be withdrawn pursuant executed and delivered such further documents and instruments as Administrative Agent, in its sole discretion, deems necessary or desirable to evidence and perfect its Liens in the Collateral.
(p) Section 7.11 of the Credit Agreement if deposited or credited is hereby amended 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, read as provided therein.follows:
Appears in 1 contract
Collateral. Subject to the terms of the applicable Collateral Documents, In order to secure the payment when due of any and performance all Indebtedness, Debtor hereby pledges, assigns, transfers, hypothecates and sets over to the Secured Parties and hereby grants to the Secured Parties a security interest in all of Debtors’ rights, title and interest in, to and under the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreementfollowing properties (collectively, the related financing statements “Collateral”):
(a) all of Debtor’s inventory, both now owned and the hereafter acquired, including, without limitation, all goods, merchandise, raw materials, goods in process, finished goods and other related documents, the Guarantor shall granttangible personal property both now owned and hereafter acquired by Debtor and held for sale or lease or furnished or to be furnished under contracts of service or used or consumed in Debtor’s business, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Partiesall proceeds thereof, as applicablewell as all additions and accessions thereto and substitutions and replacements for any thereof;
(b) all of Debtor’s tangible personal property, a first priorityboth now owned and hereafter acquired, security interest including, without limitation, all equipment, consumer goods, furniture, fixtures, machinery, operating equipment, assembly and ▇▇▇▇ production equipment, engineering and electrical equipment, and all proceeds of any thereof, as well as all additions and accessions thereto and substitutions and replacements for any thereof;
(c) all of Debtor’s intangible personal property, cash on hand and cash in and on its interests in the followingdeposits with banks or other financial institutions, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investorsacquired, 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 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 all accounts, chattel paper, documents, instruments and general intangibles, all contracts, shares of clauses (x)stock, (y) and (z)bonds, any and all representationsnotes, warranties, covenants evidences of indebtedness and other agreements of such Investors or guarantors contained thereinsecurities, any bills, notes and all duties accounts receivable, interests in life insurance policies, trademarks, trade names, patents, patent rights, copyrights, claims, credits, chooses in action, licenses, permits, franchises 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 theretogrants;
(iiid) all rents, income and issues arising from or in connection with, and all proceeds of, any of the foregoing;
(e) any and all agreementstransferable licenses, instruments sublicenses and other documents of every kind franchises, whether now owned or description to the extent evidencing or supporting obligations under hereafter acquired, granted in any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral AccountDebtor’s intangible personal property, 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, any present or future right of Debtor to receive royalties or other payments from those to whom licenses, sublicenses or franchises have been or will be granted; and
(f) all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (rights, title and interests, now owned 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 Documentshereafter acquired, to purchase Portfolio Investments (all other than Permitted Investments deposited in property and assets, real, personal 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 thereinmixed.
Appears in 1 contract
Collateral. Subject ALL Accounts, Contract Rights, Chattel Paper, General Intangibles, Inventory, Equipment and Fixtures, Whether owned or acquired later, all accessions, additions, replacements, and substitution; all records of any kind relating to any of the foregoing; all proceeds, (including insurance, bond, general Intangibles and account proceeds), together with all the other real and personal property with all and singular the improvements, ways, streets, alleys driveways, passages, waters, watercourse, rights, liberties, privileges, hereditaments, and appurtenances, whatsoever thereunto belonging, or in any wise appertaining, and the reversions and remainders, rents issues and profits thereof, and all estate rights, title interest property, claim and demand whatsoever of the said Debtor, in law, equity, or otherwise however, of, in and to the terms of the applicable Collateral Documents, to secure the payment same 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, every part thereof including but not limited to the right to draw down Investor Capital Contributions following: Preferred Stock Certificate issued as Birth Certificate, State of Ohio File No. XX-XXX-XXXX, as received by OHIO DIVISION OF VITAL HEALTH and pledge represented by the same including the Bond issued and sold by the UNITED STATES department of the Treasury and Commerce bought by the Federal Reserve Bank and held in Trust at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ by the Depository Trust Company (DTC) and traded on such Unfunded Capital Commitments from such Investors the circle 750 Stock Exchange for the Settlement of ALL DEBT PUBLIC AND PRIVATE predicated on the United States and to issue Investor Capital Calls with respect thereto;
(ii) the Estate described above as the debtor, but not limited to the extent relating to pignus, hypotheca, heriditaments, res, and 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 energy and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including products derived therefrom, including, but not limited to, in each case of clauses (x)the BAILEE all cap TEX ▇▇▇ ▇▇▇▇▇ and Tex ▇▇▇ ▇▇▇▇▇, (y) or/ and (z)any variation/derivation thereof, any and all representationssignatures on all contracts, warrantiestrusts, covenants and other agreements of such Investors or guarantors contained therein, any predicated on the United States Vessel 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;
(iiiEstate described above as the debtor. Social Security Administration form SSA-3000(6-99) 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, document for account Number including but not limited to employer identification number, cusip and autotris international tracking number. Cestui que (Social Security Insurance) trust numbers ▇▇▇-▇▇-▇▇▇▇ (front) F1234567 (back). Obligation of Debtor in favor of Secured Party as set forth in the express, written Security Agreement No. TLM19790512, amount of said obligation: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Dollars ($100,000,000,000.00). all items appearing on creditor/debtor UCC filings as 'collateral,' with all schedules attached thereto. Know all men by these presents, that I, TEX ▇▇▇ ▇▇▇▇▇ (DEBTOR) am held firmly bound unto Tex ▇▇▇ ▇▇▇▇▇ Trust (Secured Party) in the sum of present collateral Values and any debts or losses claimed by any and all funds persons against the Commercial transactions and financial assets on deposit therein Investments of aforesaid Collateral up to the penal sum of One Hundred Billion Dollars ($100,000,000,000.00) lawful money of the United States, for the payment of which; will and truly be made, I bind myself, my heirs, executors, administrators and third party assigns, jointly and severally and firmly by these presents. The conditions of the above bond is, that whereas the Collateral described herein above and utilized for the purpose of transmitting goods in Commercial Activity by the Debtor are in pursuit of the Statutes in such case made, provided and indentured to the Secured Party by which indenture the said Debtor covenanted to do certain things in this agreement. Conditions of this obligation are such that if Secured Party suffers any loss of Vested Rights in the said Collateral Property or credited thereto; and
monetary Losses due in debts claimed against the aforesaid Collateral Property, or the Debtor, who binds himself by this obligation to make advance payments from Debtor’s U. S. Treasury Accounts, established under IMF, BMF, IRAF, EPMF (vtemporary, Permanent and current) accounts to any and all proceeds of who make debt claims against any of the foregoing Collateral or Vested Rights in said Collateral of Secured Party, this obligation shall bind the Debtor to fully and faithfully comply with all applicable provisions of law. This bond shall be in effect as of the date hereon and shall remain in full force and effect until the Surety (Secured Party) is released from liability by the written order of the UNITED STATES Government and provided that the Debtor may cancel this bond at any time and be relived of further liability hereunder by delivery within thirty (30) days written notice to the Secured Party. Such cancellation shall not affect any bond before the end of thirty (30) day period for an amount equal to or greater that the value of this instrument unless the parties agree otherwise. The Debtor (Indemnifying Party), without the benefit of discussion or division, does hereby agree, covenant and undertake to indemnify, defend and hold the Secured Party (Indemnified Party) harmless from and against any and all claims, losses, liabilities, costs, interests and expenses (hereinafter referred to as “Claim”) including, without limitationrestriction, all legal costs, interests, penalties ands fines suffered or incurred by the Secured Party arising as a result of the records Secured Party having its personal guarantee with respect to any loan or general indebtedness of the Guarantor concerning Debtor including, without in any way restricting the generality of the foregoing Collateral; excluding amount owing by the Debtor to all creditors. The Indemnified Party (ASecured Party/Surety) shall promptly advise the Indemnifying Party (Debtor) of any funds properly withdrawn from a Collateral Account claim and provide the same with full details thereof, including copies of any document, correspondence, suit or action received by or served upon the Indemnified Party (Secured Party). The Indemnified Party (Secured Party) shall fully cooperate with the Indemnifying Party (debtor) in any discussion, negotiations 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 proceedings relating to any such account), claim. Debtor warrants and covenants 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, Party as provided therein.follows:
Appears in 1 contract
Sources: Commercial Security Agreement
Collateral. Subject to (a) As security for the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunderall obligations of every kind (including, 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 the obligation to make payments pursuant to Section 1 hereof) owed by Applicant to Bank of clauses America under the Letter of Credit, this Agreement, or otherwise, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due, howsoever created, arising or evidenced (xthe “Liabilities”), Applicant hereby assigns, pledges and grants to Bank of America a lien upon and a security interest for Bank of America’s benefit in, and recognizes and admits Bank of America’s unqualified right to: (yi) the possession and (z), disposal of any and all representationsItems, warrantiesall shipping documents, covenants and other agreements warehouse receipts, policies or certificates of such Investors or guarantors contained thereininsurance, 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 accompanying or description relative to any Items, and all Property (as defined below) covered, shipped, or stored under any Items or documents whether or not any Items, documents, or Property shall be released to Applicant, (ii) all claims which the extent evidencing or supporting obligations under Applicant may have against anyone else in connection with 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, any guarantees, indemnities, agreements or other undertakings, policies of insurance or assurances in connection therewith, (iii) all other Property (A) which, now or hereafter, is in Bank of America’s possession, control, or in transit to, or the pledge of which is at any time registered to, Bank of America or Bank of America’s agent or bailee for any reason or purpose or (B) in which, now or hereafter, Bank of America may have a security interest, securing any of the records Liabilities, (iv) all balances, credits, deposits, accounts or moneys, held by Bank of the Guarantor concerning America, now or hereafter, which Applicant owns or in which Applicant may have an interest, and (v) all dividends, distributions and other rights in or with respect to, and substitutions for and products and proceeds of, any of the foregoing being referred to collectively as the “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”. In addition, 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 Applicant agrees: (i) that Applicant shall keep all Collateral that is customarily insured against loss, damage, theft and other risks, insured in amounts and by companies satisfactory to Bank of America, and either assign the term “Collateral” shall not include policies and certificates of insurance to Bank of America or make the Unfunded Capital Commitments loss or adjustment payable to Bank of America, and hold as Bank of America’s agent in trust for Bank of America any proceeds received by Applicant under such policies and promptly deliver the SOX Insiders, including but not limited same to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests Bank of the SOX Insiders, if any, unless so elected by the Guarantor in its discretionAmerica, (ii) that, if Bank of America at any time deems such insurance inadequate for any reason, Bank of America may procure such insurance as Bank of America deems necessary, at Applicant’s expense, and (iii) to furnish to Bank of America such certificates or other evidence with respect to the term foregoing as Bank of America may request. “CollateralProperty” includes any rights or interests in goods, merchandise, documents, securities, funds, chooses-in-action and any and all other forms of property, whether tangible or intangible, real, personal or mixed, and proceeds thereof, which are owned by Applicant.
(b) Applicant agrees to keep the Collateral free and clear of all other interests and claims and, at any time and from time to time, upon Bank of America’s request, (i) to deliver to Bank of America any of the Collateral that may then be in or may hereafter come into its possession or control, (ii) to execute and deliver to Bank of America such further security agreements, financing statements and other documents (and to pay the cost of filing or recording the same in all public offices deemed necessary by Bank of America), and to do such other acts or things required to perfect and maintain a valid security interest in the Collateral to secure the payment of the Liabilities (and any reproductions of this Agreement or of any such other security agreement or financing statement shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceedsbe sufficient for filing as a financing statement), (iii) to furnish to Bank of America information concerning its financial condition, the term “Collateral” , and any obligors on the Collateral as Bank of America may reasonably request, and (iv) to deliver and assign to Bank of America additional Collateral (including, but not limited to, cash Collateral) of a value and condition satisfactory to Bank of America in Bank of America’s sole judgment as additional security for the Liabilities if Bank of America feels insecure for any reason.
(c) Bank of America shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if Bank of America takes such action as Applicant shall request in writing, but Bank of America’s failure to comply with any such request shall not include be a failure to exercise reasonable care. If Applicant does not make a request in writing, Bank of America’s failure to preserve or protect any collateral posted rights to the Collateral shall not be a failure to exercise reasonable care in the custody and preservation of the Collateral.
(d) Bank of America may, whether before or received after the occurrence of any Deposit Event referred to in connection Section 3 hereof, at Bank of America’s sole discretion and without notice to Applicant, take any or all of the following actions: (i) transfer all or any part of the Collateral into Bank of America’s name or the name of Bank of America’s nominee, with or without disclosing that such Collateral is subject to the Swap Agreementssecurity interest under this Agreement, (ii) notify any obligors of any of the Collateral to make payment to Bank of America of any amounts due or to become due, (iii) enforce collection of any of the Collateral by suit or otherwise, or surrender, release or exchange all or any part of the Collateral, (iv) take control of any proceeds (including insurance proceeds) of any of the Collateral may be subject to Permitted LiensCollateral, and (v) a Borrower extend or the Guarantor may maintain other bank accounts or securities accounts in addition renew any obligation of any obligor to the Collateral Accounts that will not be considered “Collateral” , or grant releases, compromises or indulgences for any obligation of any obligor to the Collateral. The security interest granted by this Section shall continue until such time as all Liabilities have been paid in full 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 thereindischarged.
Appears in 1 contract
Sources: Commercial Letter of Credit
Collateral. Subject to the terms (a) The due and punctual payment of the applicable Collateral Documentsprincipal of, 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 Letterspremium, if any, and interest on the Notes, the Guarantees thereof when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of such Investors and interest (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 permitted by law), if any, on the Notes and the Guarantees thereof and performance of all other obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Accountthis Indenture, 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 obligations of the Company set forth in Section 7.7 and Section 8.5 herein, and the Notes and the Guarantees thereof and the Security Documents, shall be secured by (i) a senior Lien on all assets of the Company and each Subsidiary Guarantor that constitute Collateral, subject to Permitted Liens, as and when provided in the Security Documents to which the Company and the Subsidiary Guarantors, as the case may be, have entered into and will be secured by 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 pledged pursuant to the Credit Agreement if deposited Security Documents hereafter delivered as required or credited to a permitted by this Indenture and the Security Documents. The Company and the Subsidiary Guarantors hereby agree that the Collateral Account) to Trustee shall hold the extent usedCollateral in trust for the benefit of itself all of the Holders, the Trustee and holders of Shared Lien Obligations, in each case pursuant to the terms of the Guarantor’s Governing Security Documents and the Collateral Trustee is hereby authorized to execute and deliver the Security Documents.
(b) The Trustee and each Holder, by its acceptance of any Notes and the Guarantees thereof, consents and agrees to the terms of the Security Documents (including, without limitation, the provisions providing for foreclosure) as the same may be in effect or may be amended from time to time in accordance with their terms and authorizes and directs the Collateral Trustee to perform its obligations and exercise its rights under the Security Documents in accordance therewith.
(c) The Trustee and each Holder, by accepting the Notes and the Guarantees thereof, acknowledges that, as more fully set forth in the Security Documents, the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders, the Trustee, the Collateral Trustee and holders of Shared Lien Obligations, and that the Lien of this Indenture and the Security Documents in respect of the Trustee, Collateral Trustee and the Holders and holders of Shared Lien Obligations is subject to purchase Portfolio Investments and qualified and limited in all respects by the Security Documents and actions that may be taken thereunder.
(other than Permitted Investments deposited d) With respect to any Collateral in existence on the date hereof, each Grantor shall use commercially reasonable efforts to comply with the requirements of Section 4 of the Security Agreement on the date hereof and, should any Grantor be unable to comply with the requirements of Section 4 of the Security Agreement on the date hereof after employing such commercially reasonable efforts with respect to any Collateral in existence on the date hereof, such Grantor shall use commercially reasonable efforts with respect to such Collateral to comply with the requirements of Section 4 of the Security Agreement within ninety (90) days of the date hereof. Each Grantor shall promptly inform the Collateral Trustee of its acquisition of any Collateral for which any action is required by Section 4 of the Security Agreement hereof (including, for the avoidance of doubt, the filing of any applications for, or credited the issuance or registration of, any Patents, Copyrights or Trademarks). With respect to any such account)Collateral hereafter owned or acquired, such Grantor shall comply with such requirements within 10 (ten) days of Grantor acquiring rights therein; provided that notwithstanding the 10 (ten) day requirement above, (x) with respect to make payments Collateral owned by any Grantor that becomes evidenced by an Instrument, Certificated Security or distributions Chattel Paper with a value in excess of $250,000, such Grantor shall have 30 (thirty) days to Investors in accordance with the terms hereof deliver such Instrument, Certificated Security 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 Chattel Paper to the contrary in this Credit Agreement or Collateral Trustee, (y) with respect to any other Loan Document Intellectual Property for which a Grantor shall (i) file an application for registration with the term “Collateral” shall not include United States Patent and Trademark Office or 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 discretionUnited States Copyright Office, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets file a statement of use or any Excluded Proceeds, amendment to allege use with respect to any “intent to use” trademark application or (iii) acquire any patent, registered trademark, registered copyright or any application for the term “Collateral” foregoing, such Grantor 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 report such filing to the Collateral Accounts that will not be considered “Collateral” and Trustee within thirty (30) days after the last day of the fiscal quarter in which such other accounts shall not be subject to control agreements filing or other restrictions acquisition occurs, and (viz) with respect to any after acquired real property acquired by any Grantor after the Administrative Agent Issue Date, such Grantor shall execute and deliver such mortgages, deeds of trust, security instruments and other documentation required by applicable law to vest in the Secured Parties shall not have any Lien on any Collateral Trustee a perfected security interest in such after acquired real property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinwithin ninety (90) days of the acquisition of such after acquired real property.
Appears in 1 contract
Sources: Indenture (Conexant Systems 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 Borrower, Holdings and the other related documents, the Guarantor shall grantOperating Subsidiaries will (as applicable), and shall pledge and/or assign by way will cause each of securitythe Loan Parties (as applicable) 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 Partiesits right, as applicable, a first priority, security title and interest and ▇▇▇▇ in and on its interests in to the followingCollateral, 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 InvestorsBorrower and the Subsidiaries of Holdings and the Borrower owned by Holdings, whether now the Borrower or hereafter committedany Subsidiary of Holdings or the Borrower, including but not limited to the right to draw down Investor other than Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoStock of Unrestricted Subsidiaries of Holdings;
(iib) to the extent relating to the Unfunded Capital Commitments all of the Investors constituting Collateral Property (as such Property is more specifically described in clause (i) abovethe Security Documents), (x) the Constituent Documents, (y) the Subscription Agreements including tangible and Side Letters, if anyintangible property and real and personal property, of such Investors Holdings and (z) any the Borrower and all guaranties each Subsidiary of such Investors’ obligations under Holdings or the Constituent Documents and Subscription Agreements including but not limited toBorrower, 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 than Property of the foregoing Collateral and any and all security and other property with respect to such Collateral;
Unrestricted Subsidiaries of Holdings, including, without limitation, the following: Investments (iv) each Collateral Accountincluding certificates of deposit); accounts; inventory (including, without limitation, work in process); equipment; deposit accounts (including but not limited to any and all funds and financial assets on deposit therein or credited theretocash collateral accounts); and
brokerage accounts; instruments; Operating Assets; the Sprint Agreements; contract rights (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 Service Area Network, including rights of way, easements, leases and all related contracts, and all consents and waivers necessary or appropriate from all parties to such contracts, including, without limitation, all consents and waivers necessary or appropriate to permit the collateral assignment of or security interest granted 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); instruments; chattel paper; Permits; Intellectual Property; and intercompany Debt (including, without limitation, Debt of the Guarantor concerning Borrower or any of its Subsidiaries owed to or held by Holdings); provided, however, that Holdings shall not be required to grant to the foregoing Collateral; excluding Administrative Agent a security interest in (i) any identifiable cash proceeds of the issuance of the Holdings Public Offering or any identifiable cash proceeds of the issuance of the Holdings Senior Notes or (ii) any dividends, distributions or other amounts received by Holdings from its Unrestricted Subsidiaries, in each case (i.e., as to each of clause (i) and clause (ii) preceding) if and to the extent (but only if and to the extent) that such proceeds (A) any funds properly withdrawn from a Collateral Account (are not, and are not required to be, contributed or that could be withdrawn pursuant otherwise paid or transferred to the Credit Agreement if deposited Borrower or credited to a Collateral Account) to the extent used, pursuant to the terms any Subsidiary 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, Borrower and (B) the are held in a segregated deposit, securities or similar account of Holdings and are not commingled with other cash, securities or properties of Holdings; and
(c) all cash and non-cash proceeds and products 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 The Obligations, Hedging Liability and Funds Transfer, Deposit Account Liability and Note Purchase Agreement Obligations shall be secured by (a) valid, perfected and enforceable Liens on all right, title and interest of (i) STA Holdings, the Borrower and each Domestic Subsidiary in all capital stock and equity interests held by such Person in each of its Domestic Subsidiaries and in 65% of all capital stock and equity interests held by such Person in each of its Foreign Subsidiaries, in each case, whether now owned or hereafter formed or acquired, and all proceeds thereof and (ii) each Canadian Borrower, each of their respective Subsidiaries and any parent entity of a Canadian Borrower organized under the laws of Canada in all capital stock and equity interests held by such Person in each of its Subsidiaries, whether now owned or hereafter formed or acquired, and all proceeds thereof, and (b) valid, perfected (subject to the proviso appearing at the end of this sentence) and enforceable Liens on all right, title and interest of STA Holdings, the Borrower, each Domestic Subsidiary, and each Canadian Borrower, each of their respective Subsidiaries and any parent entity of a Canadian Borrower organized under the laws of Canada in all accounts and accounts receivable, notes and notes receivable, contract rights (excluding any contracts which cannot be assigned or pledged pursuant to their terms except to the extent the applicable restriction on assignment is ineffective under applicable law) instruments, documents, chattel paper, general intangibles (including, without limitation, patents, trademarks, tradenames, copyrights, and other intellectual property rights, but in any event excluding applications for trademarks based on “intent to use”), investment property, inventory, farm products, machinery, equipment, fixtures, deposit accounts, the real estate currently subject to a security interest in favor of the applicable Collateral DocumentsAdministrative Agent and, subject to secure Section 4.3 hereof, real estate acquired after 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 followingClosing Date, whether now owned or hereafter acquired or arising:
, and all proceeds thereof; provided, however, that: (i) any and all Unfunded Capital Commitments the Lien of the InvestorsAdministrative Agent on Property subject to a Capital Lease or conditional sale agreement or subject to a purchase money lien, whether now or hereafter committed, including but not limited in each instance to the right extent permitted hereby, shall be subject to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors the rights of the lessor or lender thereunder (and shall only constitute Collateral hereunder to issue Investor Capital Calls with respect thereto;
the extent not restricted thereby), (ii) until an Event of Default has occurred and is continuing and thereafter until otherwise required by the Administrative Agent or the Required Lenders, Liens on deposit accounts maintained by the Borrower and each Subsidiary in proximity to its operations (A) for the extent relating purpose of paying amounts owing (as opposed to the Unfunded Capital Commitments receiving collections of the Investors constituting Collateral as provided in clause Section 4.2 below) need not be perfected provided that the total amount on deposit at any one time not so perfected (i) above, shall not exceed $150,000 in any one account or (xii) shall not exceed $1,500,000 in the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of aggregate for all 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, accounts and (B) for the proceeds purpose of paying payroll need not be perfected so long as such withdrawn funds (the items accounts exclusively hold money deposited to pay payroll and such deposits are not made more than two days 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 advance of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions date on which 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 Proceedspayroll is due, (iii) Liens on notes and notes receivable and Liens on vehicles which are subject to a certificate of title law need not be perfected provided that the term “Collateral” total value of such property at any one time not so perfected shall not include any collateral posted or received exceed $1,000,000 in connection with the Swap Agreementsaggregate, (iv) the Collateral may Lien of the Administrative Agent on owned real property shall not be subject required to Permitted Liensbe perfected until 60 days after the Closing Date, (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 notations of Liens on certificates of title shall not be subject to control agreements or other restrictions the timing requirements set forth in the following provisions of this Section 4.1 and (vi) the Liens against the property, assets and undertaking of a Canadian Borrower, any Subsidiary of a Canadian Borrower and any parent entity of a Canadian Borrower, if such parent entity is organized under the laws of Canada shall only secure the Obligations owing by a Canadian Borrower. The Borrower shall deliver and shall cause each Domestic Subsidiary to deliver, such certificates of title, together with any required fee, to the appropriate Department of Motor Vehicles as soon as practicable but in any event within 45 days after the acquisition of any vehicle to cause the Administrative Agent’s lien to be noted on all such certificates of title. As soon as practicable, but in any event within 45 days of the acquisition of any vehicle, the Borrower shall deliver to the Administrative Agent and copies of all properly completed applications to have the Secured Parties shall not have Administrative Agent’s Lien noted on the certificate of title therefor and, if such vehicle was previously titled, a copy of such title and, if applicable, a copy of a pay-off letter executed by any Lien on any property that is not “Collateral”, except current lienholder. The Administrative Agent may release certificates of title to the Borrower in connection with any Swap Agreementcontemplated dispositions of the vehicles in question. Each of the Borrower and the Canadian Borrowers acknowledges and agrees that the Liens on the Collateral shall be granted to the Administrative Agent for the benefit of itself, as provided thereinthe Lenders, the L/C Issuer, the Canadian L/C Issuer and the Note Holders and shall be valid and perfected first priority Liens subject, however, to the proviso appearing at the end of the first sentence of this Section 4.1, in each case pursuant to one or more Collateral Documents from such Persons, each in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Collateral. Subject to As collateral security for the terms of the applicable Collateral Documents, to secure the prompt and complete payment and performance in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations hereundersuch Grantor’s Secured Obligations, 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, Collateral Agent for the ratable benefit of each of the Secured Parties, as applicable, Parties a first priority, security interest in all of such Grantor’s right, title and interest in the following property, whether now owned by such Grantor or hereafter acquired and whether now existing or hereafter coming into existence (all being collectively referred to herein as “Collateral”):
(a) all moneys due or to become due to the Borrower in respect of loans and advances from time to time made by it to the Subsidiary Guarantors or any of them and all collateral security provided hereunder for the payment of any such loans or advances;
(b) all accounts and general intangibles (each as defined in the Uniform Commercial Code) of such Grantor constituting any right to the payment of money in respect of any loans or advances or for Inventory, Farm Products or other goods sold or leased or for services rendered, all moneys due and to become due to such Grantor under any guarantee (including a letter of credit) of any such account or general intangible (such accounts, general intangibles and moneys due and to become due being herein called collectively “Accounts”);
(c) all instruments, chattel paper and letter-of-credit rights (each as defined in the Uniform Commercial Code) of such Grantor 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”);
(d) all inventory (as defined in the Uniform Commercial Code) of such Grantor, in all of its forms, wherever located, now or hereafter existing (including, but not limited to, (i) all livestock purchased in the ordinary course of business and held for ▇▇▇▇▇▇▇▇▇ and resale, meat, meat products and raw materials and work in process therefor, finished goods thereof, and on its interests materials used or consumed in the followingmanufacture or production thereof including packaging and processing supplies, whether now owned (ii) goods in which such Grantor has an interest in mass or hereafter acquired a joint or arising:
other interest or right of any kind (iincluding, without limitation, goods in which such Grantor has an interest or right as consignee), (iii) goods which are returned to or repossessed by such Grantor and all accessions thereto and products thereof and documents therefor, and (iv) all goods obtained by such Grantor in exchange for such inventory, and any products made or processed from such inventory including all substances, if any, commingled therewith or added thereto (any and all Unfunded Capital Commitments such inventory, accessions, products and documents herein collectively called “Inventory”);
(e) all farm products (as defined in the Uniform Commercial Code) of the Investorssuch Grantor, whether in all of their respective forms, wherever located, 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 (i) livestock, meat and to issue Investor Capital Calls with respect thereto;
products thereof and (ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral all agricultural supplies used or consumed in clause (i) abovesuch Grantor’s operations, (x) the Constituent Documentsincluding without limitation, (y) the Subscription Agreements and Side Lettersall feed, if anymeal, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toingredients, in each case of clauses (x)seeds, (y) and (z)drugs, any and all representationsmedications, warrantiesvaccines, covenants supplements and other agreements of such Investors chemicals used in feeding, maintaining, growing, preserving or guarantors contained thereinproducing any farm products, 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 all accessions to and all agreements, instruments products of and other documents of every kind or description to the extent evidencing or supporting obligations under for any of the foregoing Collateral and (any and all security such farm products, accessions, products and other property with respect to such Collateraldocuments herein collectively called “Farm Products”);
(ivf) each Collateral Account, including but not limited contract and other agreement of such Grantor relating to any and all funds and financial assets on deposit therein the sale or credited thereto; andother disposition of Inventory or Farm Products;
(vg) all documents of title (as defined in the Uniform Commercial Code) or other receipts of such Grantor covering, evidencing or representing Inventory or Farm Products (herein collectively called “Documents”);
(h) all rights, claims and benefits of such Grantor against any and all proceeds Person arising out of, relating to or in connection with Inventory or Farm Products of any of the foregoing Collateral such Grantor, 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)rights, to make payments claims or distributions to Investors in accordance with the terms hereof benefits against any Person storing, raising, breeding or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of transporting such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing Inventory or anything to the contrary in this Credit Agreement or any other Loan Document Farm Products;
(i) the term “Collateral” shall not include balance from time to time in the Unfunded Capital Commitments Collateral Account, including all cash, financial assets and investment property (as defined in the Uniform Commercial Code) from time to time standing to the credit thereof; and
(j) all proceeds, products, offspring (including unborn offspring), accessions, rents, profits, income, benefits, substitutions 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 and all causes of action, claims and warranties now or hereafter held by any Grantor in respect of any of the items listed above) and, to the extent related to any property described in said clauses or such proceeds, products and accessions, all books, correspondence, credit files, records, invoices and other papers, including but not limited to without limitation all tapes, cards, computer runs and other papers and documents in the right to draw down Investor Capital Contributions on possession or under the control of such Unfunded Capital Commitments, Grantor 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 computer bureau 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 service company from time 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 time acting for 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 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 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 the Secured Party as applicablehereinafter provided, a first priority, security interest and ▇▇▇▇ in and on its interests in lien upon all of the followingCompany’s personal property and fixture property and other assets, whether now owned or hereafter acquired by or arising:
(i) any arising in favor of the Company, and all Unfunded Capital Commitments of the InvestorsCompany’s right, title and interest therein, whether now existing or hereafter committedcoming into existence, and regardless of where located, except for the Excluded Collateral (all of the foregoing except the Excluded Collateral being collectively referred to herein as “Collateral”), including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors following types and to issue Investor Capital Calls with respect theretoitems of property:
a. all goods;
b. all accounts, general intangibles and payment intangibles (ii) to each as defined in the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause Uniform Commercial Code), including (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) all moneys due and to become due to the 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, in each case all moneys due and to become due to the Company under any guarantee (including a letter of clauses (x), (ycredit) and (z), any of the purchase price of Inventory or Equipment sold by the Company and all representationstax refunds (such accounts, warrantiesgeneral intangibles and moneys due and to become due being herein called collectively “Accounts”);
c. all instruments, covenants and other agreements of such Investors or guarantors contained thereinall chattel paper, any and all duties and obligations letters of such Investors or guarantors thereunder and any and all rights to compel performance and enforce credit (each as defined in 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 AccountUniform Commercial Code), including but not limited to those evidencing, representing, arising from or existing in respect of, relating to, securing or otherwise supporting the payment of, any of the Accounts, and including (but not limited to) promissory notes, drafts, bills of exchange and trade acceptances (herein collectively called “Instruments”);
d. all inventory (as defined in the Uniform Commercial Code) and all funds goods obtained by the Company in exchange for such inventory (herein collectively called “Inventory”);
e. all Intellectual Property and financial assets on all other accounts or general intangibles of the Company not constituting Intellectual Property or Accounts;
f. all equipment (as defined in the Uniform Commercial Code) (herein collectively called “Equipment”);
g. each contract and other agreement of the Company relating to the sale or other disposition of Inventory or Equipment;
h. all documents of title (as defined in the Uniform Commercial Code) and other receipts of the Company covering, evidencing or representing Inventory or Equipment (herein collectively called “Documents”);
i. All deposit therein accounts;
j. All securities and other investment property;
k. all rights, claims and benefits of the Company against any person arising out of, relating to or credited theretoin connection with Inventory or Equipment purchased by the Company, including, without limitation, any such rights, claims or benefits against any person storing or transporting such Inventory or Equipment; and
(v) any and l. 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 (k) 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 1 contract
Sources: Security Agreement (VPR Brands, LP.)
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 such right, title or interest) is collectively referred to as the “Collateral”:
(a) 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 supporting obligations related to any of the applicable Collateral Documents, to secure foregoing;
(b) the payment commercial tort claims described on Schedule 1 and performance of the Obligations hereunder, on any supplement thereto received by Administrative Agent pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements Section 5.8;
(c) all books and records pertaining to the other related documentsproperty described in this Section 3.1;
(d) all cash or Cash Equivalents;
(e) all property of such Grantor held by any Secured Party, including all property of every description, in the Guarantor shall grantcustody of or in transit to such Secured Party for any purpose, and shall pledge and/or assign by way of securityincluding safekeeping, to the Administrative Agentcollection or pledge, for the benefit account of each of the Secured Parties, such Grantor or as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned to which such Grantor may have any right or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committedpower, 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) Administrative Agent 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 1 contract
Sources: Security Agreement (Unisys Corp)
Collateral. Subject to the terms of the applicable Collateral Documents, to (A) To secure the payment and performance of all of the Obligations hereunderwhen due, pursuant to a Collateral Account Pledge, a each Existing Borrower hereby reconfirms and restates its grant under the Loan and Security Agreement, the related financing statements Agreement and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way Existing Loan Documents of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ lien in and favor of DLL on all of its interests in the followingCollateral (including all Excess Cash Collateral), whether now owned or hereafter acquired acquired, created or arising:arising and wherever located. Each Existing Borrower hereby confirms and agrees that all security interests and liens granted under the Loan and Security Agreement and the other Existing Loan Documents to DLL continue in full force and effect and shall continue to secure the Obligations. All Collateral remains free and clear of any Liens other than Permitted Encumbrances. Nothing herein contained is intended to in any manner impair or limit the validity, priority and extent of DLL’s security interest in and liens upon the Collateral.
(B) Without limiting the generality of the joinder of Joining Borrowers into the Security Agreement as provided for in Section 1 of this Amendment above, each Joining Borrower hereby grants to DLL (i) any a first priority security interest (subject only to Permitted Encumbrances) in all of such Joining Borrower's now owned or hereafter acquired or arising Receivables, Chattel Paper, Commercial Tort Claims, Deposit Accounts (and all Unfunded Capital Commitments of the Investorsfunds and monies from time to time on deposit therein), 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 Equipment, General Intangibles, Goods, Instruments, Inventory, Investment Property, Letter-of-Credit Rights, life insurance policies, Trademarks, Copyrights, Licenses and Side LettersPatents, if any, all of such Investors Joining Borrower 's money 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)cash, any and all representations, warranties, covenants property now or at any time hereafter in DLL's possession (including claims and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder credit balances 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 Excess Cash Collateral), and all agreementsproceeds of the foregoing (including proceeds of any insurance policies, instruments proceeds of proceeds and other documents of every kind or description claims against third parties) and all Supporting Obligations, products, accessions and all books and records related to the extent evidencing or supporting obligations under any of the foregoing Collateral and any (ii) assigns, transfers and sets over to DLL all security of its right, title and interest, powers, privileges and other property benefits of all leases, rental agreements and related documents entered into by such Joining Borrower with respect to any Equipment leased by such Collateral;Joining Borrower as lessor or lessee together with all income, proceeds and other benefits thereof.
(ivC) 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 Without limiting the generality 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 paragraphs (A) and (B), collectively “Excluded Proceeds”Borrower (specifically including each Joining Borrower) acknowledges and agrees that the Obligations secured by the Collateral and the grants of security interests and liens in the Collateral by Borrower in favor of DLL include all present and future loans, advances, debts, liabilities, obligations, covenants, duties and indebtedness at any time owing by Borrower to DLL, whether evidenced by the Loan and Security Agreement, any note or other instrument or document or otherwise, whether arising from an extension of credit, opening of a letter of credit, banker's acceptance, loan, guaranty, indemnification or otherwise, whether direct or indirect (including, without limitation, those acquired by assignment and any participation by DLL in Borrower's debts owing to others). Notwithstanding , absolute or contingent, due or to become due, and that 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 would include any Portfolio Investmentsuch debts, any Portfolio Assets or any Excluded Proceedsliabilities, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject obligations and indebtedness owing to Permitted Liens, (v) a DLL from 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 thereinoperating or capital lease.
Appears in 1 contract
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 is collectively referred to as the “Collateral”:
(a) all accounts, chattel paper, deposit accounts, documents, equipment, general intangibles, instruments, inventory, investment property and any supporting obligations related thereto;
(b) the commercial tort claims described on Schedule 1 and on any supplement thereto received by the Administrative Agent pursuant to Section 5.9;
(c) all books and records pertaining to the terms other property described in this Section 3.1;
(d) all property of the applicable Collateral Documentstype described in this Section 3.1 of any Grantor held by any Secured Party, including all property of every description, in the custody of or in transit to secure the payment and performance of the Obligations hereundersuch Secured Party for any purpose, pursuant to a Collateral Account Pledgeincluding safekeeping, 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 Agentcollection or pledge, for the benefit account of each such Grantor or as to which such Grantor may have any right or power, including, but not limited to, cash;
(e) all other goods (including but not limited to fixtures) and personal property of such Grantor, whether tangible or intangible and wherever located;
(f) to the Secured Partiesextent not included as “general intangibles” in clause (a) above, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the followingall Liquor License Rights, whether now owned or held or hereafter acquired or arising:
(i) any held by a Grantor, including. without limitation, all Liquor Licenses 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 receive monies, proceeds, or other consideration in connection with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) abovesale, (x) the Constituent Documentsassignment, (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 transfer or 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 disposition of any of the foregoing Collateral Liquor Licenses or any goodwill or other intangible rights or benefits associated therewith, including, without limitation, all rights of each Grantor to (i) transfer, assign or otherwise dispose of its right, title and interest, if any, under or in respect of such Liquor Licenses, (ii) exercise any rights, demands and remedies against the records lessor, licensor and other parties thereto, and (iii) receive proceeds of the Guarantor concerning any of the foregoing Collateralinsurance, indemnities, warranties, guaranties or claims for damages in connection therewith; excluding and
(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 Documentsforegoing; provided, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account)however, 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 Assets; and provided, further, that if and when any Portfolio Assets or any property shall cease to be an Excluded ProceedsAsset, such property shall be deemed at all times from and after the date hereof to constitute Collateral (iii) the term “Collateral” shall not include any collateral posted or received until such time as such Collateral is Disposed of in connection accordance with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower Loan Documents or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered becomes an “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 “CollateralExcluded Asset”, except in connection with any Swap Agreement, as provided therein).
Appears in 1 contract
Sources: Guaranty and Security Agreement (University Club, Inc. (FL))
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 Borrowers 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) The Lenders hereby irrevocably agree that the Liens granted to the Collateral Agent by the Credit Parties on any Collateral shall be automatically released (i) in full, upon the termination of this Agreement and the payment in full of all agreementsSecured Obligations (other than (A) contingent indemnification obligations and unasserted expense reimbursement obligations, instruments (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 that have been cash collateralized in accordance with this Agreement or backstopped to the reasonable satisfaction of the applicable Issuing Bank), (ii) upon the sale or other documents disposition of every kind such Collateral (including as part of or description in connection with any other sale or other disposition permitted hereunder) 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 of the foregoing Collateral and any and all security and other property with respect to such Collateral;
Credit Party upon its reasonable request without further inquiry), (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 Accountiii) to the extent usedsuch Collateral is comprised of property leased to a Credit Party, pursuant upon termination or expiration of such lease, (iv) if the 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 required in accordance with this Section 10.02), (v) to the terms extent the property constituting such Collateral is owned by any Guarantor, upon the 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 second following sentence), (vi) as required to effect any sale or for 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 purpose permitted under than those being released) upon (or obligations (other than those being released) of the Guarantor’s Governing Documents and this Credit AgreementParties in respect of) all interests retained by the Credit Parties, and (B) including the proceeds of such withdrawn funds (any sale, all of which shall continue to constitute part of the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything Collateral except to the contrary extent otherwise released in this Credit Agreement or any other Loan Document (i) accordance with the term “Collateral” shall not include the Unfunded Capital Commitments provisions of the SOX InsidersCredit Documents. Additionally, including but 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 limited prohibited by this Agreement resulting in such Subsidiary ceasing to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, constitute a Restricted Subsidiary 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 upon becoming an 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) 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 Borrowers 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
Collateral. Subject The COLLATERAL of this Security Agreement is as follows, wherever located, whether DEBTOR now has or hereafter acquires any rights therein, and all proceeds thereof (hereinafter sometimes collectively referred to as the terms "COLLATERAL"): All of the applicable Collateral Documents, to secure the payment assets and performance proceeds 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 DEBTOR 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;:
(iiia) 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 DEBTOR'S and any its subsidiaries now existing and all security future: (a) accounts (as defined in the Uniform Commercial Code as in effect in the State of New York and other property with respect as the same may be amended from time to such Collateral;
time, hereafter, the "UCC") (ivwhether or not specifically listed on schedules furnished to SECURED PARTY) 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 accounts created by or arising from all of the records DEBTOR'S sales of INVENTORY (as hereinafter defined) and all rights to payment under and with respect to (i) promissory notes and (ii) bank or non-bank credit cards, and all accounts arising from sales made under any of the Guarantor concerning DEBTOR'S trade names or styles, or through any of the DEBTOR'S subsidiaries, (b) unpaid seller's or lessor's rights (including rescission, replevin, reclamation and stoppage in transit) relating to the foregoing or arising therefrom; (c) rights to any INVENTORY represented by any of the foregoing, including rights to returned or repossessed goods; (d) reserves and credit balances arising in the account owned by PARAGON and under the LOAN AND SECURITY AGREEMENT; (e) guarantees or collateral for any of the foregoing; (f) insurance policies or rights relating to any of the foregoing; and (g) cash and non-cash proceeds of any and all the foregoing;
(b) all present and future documents (as defined in the UCC) and any and all warehouse receipts, bills of lading, shipping documents, chattel paper, instruments and similar documents, all whether negotiable or not and all goods and INVENTORY relating thereto and all cash and non-cash proceeds of the foregoing;
(c) all DEBTOR'S and its subsidiaries present and future general intangibles (as defined in the UCC, hereafter, "GENERAL INTANGIBLES"), including, without limitation, all present and future right, title and interest in and to all tradenames, trademarks (together with the goodwill associated therewith), copyrights, patents, licenses, customer lists, distribution agreements, supply agreements and tax refunds, together with all monies and claims for monies now or hereafter due and payable in connection with 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 Agreementotherwise, and (B) all cash and non-cash proceeds thereof, including, without limitation, the proceeds of such withdrawn funds (any licensing agreements between the items in (A) DEBTOR and (B)any licensee of any of the DEBTOR'S GENERAL INTANGIBLES provided, collectively “Excluded Proceeds”). Notwithstanding however, that if any of the foregoing or anything GENERAL INTANGIBLES existing on the date hereof other than tax refunds are prohibited by contract from being assigned to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” SECURED PARTY, SECURED PARTY agrees that it shall not include require that the Unfunded Capital Commitments DEBTOR grant SECURED PARTY a lien on such GENERAL INTANGIBLES until the earlier of the SOX Insiderstermination of such contract or deletion of such prohibition, including but not limited except that any and all monies due or to the right to draw down Investor Capital Contributions on become due under 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” GENERAL INTANGIBLES 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 LiensSECURED PARTY'S lien hereunder;
(d) all of the DEBTOR'S and its subsidiaries present and hereafter acquired inventory (as defined in the UCC) and any and all merchandise and goods, and all additions, substitutions and replacements thereof, wherever located, together with all goods and materials, wherever located, used or usable in manufacturing, processing, packaging or shipping same and in all stages of production and all cash and non-cash proceeds thereof of whatever sort (vcollectively, "INVENTORY"); and
(e) a Borrower or the Guarantor may maintain other bank all now owned and hereafter acquired deposit 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 maintained with any Swap Agreementbank or financial institutions; all cash and other monies and property in the possession or control of PARAGON; all books, as provided thereinrecords, ledger cards, disks and related data processing software at any time evidencing or containing information relating to any of the COLLATERAL described herein or otherwise necessary or helpful in the collection thereof or realization thereon, and all cash and non-cash proceeds of the foregoing.
Appears in 1 contract
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 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 any collateral posted or received in connection with the Swap Agreements, ; (iv) the Collateral may be subject Borrower's rights to Permitted Liens, Collections on deposit in the Lockbox Account; (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition subject to the Collateral Accounts that will not be considered “Collateral” Control Agreement, the Borrower's rights to the Collection Account and such other accounts shall not be subject to control agreements or other restrictions and the Hedge Reserve Account; (vi) all Hedge Collateral; (vii) all Receivable Files, the Administrative Agent Schedule of Receivables, and all documents, agreements and instruments included in the Secured Parties shall not have any Lien on any property that is not “Collateral”Receivable Files, except in connection with any Swap Agreement, as provided therein.including 75
Appears in 1 contract
Sources: Loan Agreement (Lithia Motors 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 interest is collectively referred to as the “Collateral”: (a) all accounts, chattel paper, cash, deposit accounts, securities accounts, commodities accounts, documents, equipment, general intangibles, instruments, inventory, investment property, letter-of-credit rights and any supporting obligations related to any of the foregoing; (b) the commercial tort claims for which a claim has been filed in a court of competent jurisdiction the value of which would reasonably be expected to exceed $1,000,000 described on Schedule 1 and on any supplement thereto received by the Collateral Agent pursuant to Section 4.6; (c) all books and records pertaining to the terms other property described in this Section 2.1; (d) all property of such Grantor held by any Secured Party, including all property of every description, in the applicable Collateral Documentscustody of or in transit to such Secured Party for any purpose, to secure the payment and performance of the Obligations hereunderincluding safekeeping, 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 Agentcollection or pledge, for the benefit account of each of the Secured Parties, such Grantor or as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned to which such Grantor may have any right or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committedpower, including but not limited to cash; (e) all other goods(including but not limited to fixtures) and personal property ofsuch Grantor, whether tangible or intangible and wherever located; (f) all Intellectual Property; (g) all Pledged Securities; (h) all Pledged Equity Interests, in each case including all 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 right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors Pledged Equity Interests and to issue Investor Capital Calls all warrants, rights or options issued thereon or with respect thereto;
; (iii) all Pledged Debt Instruments, in each case including all interest, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all Pledged Debt Instruments; provided that the Pledged Debt Instruments shall not include, and no Lien shall attach to, and no representation, warranty or covenant contained herein shall apply to, any Excluded Property; (j) all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of, in exchange for or upon the conversion of, and all other Proceeds received in respect of, the securities referred to in clauses (h) and (i) above; and (k) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) abovenot otherwise included, (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 Collateralforegoing; 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.5
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 Borrower Security Agreement, the related financing statements and the other related documents, the Guarantor Primary Borrower shall grant, and shall pledge and/or and 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 ▇▇▇▇ 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; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor Primary Borrower (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 Documents, to purchase Portfolio Investments used (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 a purpose permitted under the Guarantor’s Governing Documents LLC 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 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 Primary Borrower 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 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: Revolving Credit Agreement (Goldman Sachs Private Middle Market Credit LLC)
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, in each case whether tangible or intangible, wherever located, and whether now owned by such Obligor or hereafter acquired and whether now existing or hereafter coming into existence (all of the property described in this Section 4 being collectively referred to herein as applicable“Collateral”):
(a) 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 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 business and affairs of each such issuer or otherwise control each such Subsidiary, and all of such Obligor’s rights as a first prioritymember of each such Subsidiary), all letters of credit and Letter-of-Credit Rights, all Money and all Goods (including Inventory and Equipment), and all Commercial Tort Claims;
(b) to the extent related to any Collateral, all Supporting Obligations;
(c) to the extent related to any of the foregoing 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); and
(d) all Proceeds of any of the foregoing Collateral. IT BEING UNDERSTOOD, HOWEVER, that (A) in no event shall the security interest and ▇▇▇▇ granted under this Section 4 attach to (1) any contract, property rights, obligation, instrument or agreement to which an Obligor is a party (or to any of its rights or interests thereunder) if the grant of such security interest would constitute or result in and on its interests either (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Obligor therein or (ii) a breach or termination pursuant to the terms of, or a default under, any such contract, property rights, obligation, instrument or agreement (other than to the extent that any such terms 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 followingrelevant jurisdiction), or (2) any Excluded Assets, and notwithstanding anything to the contrary provided in this Agreement, the term “Collateral” shall not include, and the Obligors shall not be deemed to have granted a security interest in, any Excluded Assets and (B) the Obligors, may by notice to the Collateral 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 the Borrower may at any later time rescind any such designation by similar notice to the Collateral Agent). Each Obligor hereby authorizes the Collateral Agent at any time and from time to time (and reaffirms its authorization given prior to the Restatement Effective Date) to file or record financing statements, continuation statements thereof, amendments thereto and other filing or recording documents or instruments with respect to the Collateral in such form and in such offices as the Collateral Agent determines, in its reasonable discretion, are necessary or advisable to perfect and maintain a continuing perfection of the first priority security interests of the Collateral Agent under this Agreement. Each Obligor also authorizes the Collateral Agent to use the collateral description “all personal property of the debtor” or “all assets of the debtor,” in each case “whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments ” or words of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on similar meaning in 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 thereinfinancing statements.
Appears in 1 contract
Sources: Guarantee, Pledge and Security Agreement (FIDUS INVESTMENT Corp)
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. 53
(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
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, as applicableeach the Grantors 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 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, all the TerreStar note referred to in Section 4.06 of the records Indenture, the Side Letter, the ATC License, the ▇▇▇▇▇▇ Agreement and the Satellite Construction 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, as defined in Section 9-102(a)(13) of the Guarantor concerning any NYUCC, arising out of the foregoing Collateral; excluding 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 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 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 from 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 Collateral Account (or that could be withdrawn security interest directly in the FCC License pursuant to applicable Federal law, including the Credit Agreement if deposited 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 or in connection with the sale, assignment, transfer, or other disposition of the FCC Licenses;
(g) the Cash Escrow Account and all cash and Investment Property from time to time credited to a Collateral Accountthereto;
(h) 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
(i) 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, property rights 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, to purchase Portfolio Investments NYUCC); or (other than Permitted Investments deposited in or credited to y) require the consent of 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 third party;
(B) in no event shall the proceeds of such withdrawn funds security interest granted under this Section 3 attach to any leasehold interest in real property;
(the items in (AC) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or notwithstanding anything to the contrary set forth herein, in no event shall more than 65% of all shares of each class of capital stock of any Foreign Subsidiary or any asset of a Foreign Subsidiary be included in Collateral;
(D) to the extent that the terms of any Indebtedness incurred to finance the acquisition of any property (other than 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; and
(E) no security interest shall attach to any Excluded Property; provided, that, notwithstanding anything to the contrary, clause (A) shall apply only to the extent that any provisions providing for the breach, termination or default with respect to such lease, license, contract or agreement were not in contemplation of this Credit Security 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 transactions contemplated by the Guarantor in its discretionIndenture; and provided further that immediately upon the ineffectiveness, (ii) lapse or termination of any such prohibition on the term “Collateral” shall not include any Portfolio Investmentgrant of such security interest or lien, 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 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 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 to the terms Each Security Interest herein granted shall secure all Secured Obligations, and is in all of the applicable Collateral DocumentsGrantor’s right, to secure the payment title and performance of the Obligations hereunderinterest in and to, pursuant to a Collateral Account Pledge, a Security Agreementor otherwise with respect to, the related financing statements following property 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, assets whether now owned or existing or hereafter acquired or arising:arising and regardless of where located (collectively, the “Collateral”):
(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;
Nasdaq Collateral Shares; (ii) to the extent relating to the Unfunded Capital Commitments all dividends, shares, securities, cash, instruments, moneys or property (A) representing a dividend, distribution or return of the Investors constituting Collateral capital in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, respect 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 (including, without limitation, any Dividend thereon), (B) resulting from a split-up (including, without limitation, a split-off), revision, reclassification, recapitalization or other similar change with respect to any of the Nasdaq Shares serving as collateral hereunder, (C) otherwise received in exchange for or converted from any of the Nasdaq Shares serving as collateral hereunder and any and all security and other property subscription warrants, rights or options issued to the holders of, or otherwise in respect of, any of such Nasdaq Shares or (D) in connection with a spin-off with respect to such CollateralNasdaq Shares; and (iii) in the event of any Merger Event in which Nasdaq, Inc. (the “Company”) is not the surviving entity, all shares of each class of the capital stock of the successor entity formed by or resulting from such Merger Event received with respect to the Nasdaq Shares serving as collateral hereunder and any other consideration that is exchanged for such Nasdaq Shares or into which such Nasdaq Shares are converted;
(ivb) each Collateral AccountAccount (as defined below), any Cash, Cash Equivalent Investments, securities (including, without limitation, the Nasdaq Collateral Shares), general intangibles, investment property, financial assets and other property that may from time to time, in each case, be deposited, credited, held or carried in such Collateral Accounts or that is delivered to or in possession or control of the Security Agent or the Custodian or any of the Security Agent’s or the Custodian’s agents pursuant to this Security Agreement or the Margin Loan Agreement; all “security entitlements” as defined in §8-102(a)(17) of the UCC (as defined below) with respect to any of the foregoing and all income and profits on any of the foregoing, all dividends, interest and other payments and distributions with respect to any of the foregoing, all other rights and privileges appurtenant to any of the foregoing, including but not limited to any voting rights and all funds any redemption rights, and financial assets on deposit therein or credited thereto; and
(v) any substitutions for any of the foregoing and all any proceeds of any of the foregoing Collateral includingforegoing, without limitation, in each case whether now existing or hereafter arising; and
(1) all Proceeds (as defined below) of the records of the Guarantor concerning any of Collateral described in the foregoing Collateral; excluding clauses (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 (Aa) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing b) and (2) any dividends or anything to the contrary other distributions in this Credit Agreement respect of any shares of capital stock issued by Company in respect of any Nasdaq Collateral Shares or other securities constituting Collateral or any securities or other Loan Document (i) the term “property distributed in respect of or exchanged for any Nasdaq Collateral Shares or other securities constituting 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 into which 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 such Nasdaq 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 Shares or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”securities are converted, except in connection with any Swap Agreement, as provided thereinmerger or similar event or otherwise.
Appears in 1 contract
Collateral. Subject to As collateral security for the terms of the applicable Collateral Documents, to secure the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of all Obligations and in order to induce the Obligations hereunderBank to enter into the Credit Agreement and, pursuant to a Collateral Account Pledgethereto, a Security Agreement, make the related financing statements Loans and the other related documentsAdvances described therein, the Guarantor shall granthereby pledges, hypothecates, conveys, assigns, mortgages, transfers, delivers, and shall pledge and/or assign by way of security, grants to the Administrative Agent, for the benefit of each Bank a first lien security interest in all of the Secured PartiesGuarantor's right, as applicable, a first priority, security title and interest and ▇▇▇▇ in and on its interests in to the following, whether now owned or hereafter acquired or arising:following (all of which being hereinafter collectively called the "Collateral"):
(i) the Government Securities listed on Schedule I attached hereto and incorporated herein by reference (the "Schedule of Collateral") and (ii) any and all Unfunded Capital Commitments of the Investorsother Government Securities which may be set forth on any amendment, whether now modification or hereafter committed, including but not limited supplement 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 theretoSchedule of Collateral (collectively, the "Pledged Collateral");
(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 (zb) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toother moneys, in each case of clauses (x)securities, (y) and (z)drafts, any and all representations, warranties, covenants notes and other agreements property of such Investors any kind of the Guarantor, now or guarantors contained thereinhereafter held or received by or in transit to the Bank from or for the Guarantor, any and all duties and obligations or which may now or hereafter be in the possession of such Investors the Bank, or guarantors thereunder as to which the Bank may now or hereafter control possession, by documents of title or otherwise, whether for safekeeping, custody, pledge, transmission, collection or otherwise, and any and all deposits, general or special, balances, sums, proceeds and credits of the Guarantor, and all rights to compel performance and enforce remedies which the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors Guarantor might exercise 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 theretofor this Agreement; and
(vc) any all proceeds, including Payments and all proceeds of any Redemption Proceeds (as hereinafter defined), 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 1 contract
Sources: Pledge Agreement (Careadvantage Inc)
Collateral. Subject Each Obligor hereby pledges, 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 ratable benefit of each the Guaranteed Creditors, a security interest in all 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 it or in which such Obligor now has or at any time in the future may acquire any right, title or interest (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 Obligations (whether now existing or hereafter arising:):
(i1) 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;
(ii2) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause all Chattel Paper (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 (xwhether Tangible Chattel Paper or Electronic Chattel Paper), (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;
(iii3) 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 CollateralCommercial Tort Claims;
(iv4) each Collateral Account, including but not limited to any all cash and all funds and financial assets on deposit therein or credited thereto; andDeposit Accounts;
(v5) any and all proceeds of any of the foregoing Collateral Documents;
(6) all Fixtures;
(7) all General Intangibles;
(8) all Goods (including, without limitation, all Inventory and all Equipment);
(9) all Instruments;
(10) all Investment Property (including, without limitation, Commodity Accounts and Securities Accounts);
(11) all Letter-of-Credit Rights (whether or not the letter of credit is evidenced by a writing);
(12) all Supporting Obligations;
(13) all Pledged Collateral;
(14) all books and records pertaining to the records of the Guarantor concerning any of the foregoing Collateral; excluding and
(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 Account15) to the extent usednot otherwise included, pursuant all Proceeds and products of any and all of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing; provided, however, that notwithstanding anything herein or in any other Guaranteed Document to the terms of contrary, 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” Collateral shall not include and the Unfunded Capital Commitments security interests granted hereunder shall not attach to any Excluded Asset. None of the SOX Insiders, including but not limited covenants or representations and warranties herein shall be deemed to the right apply 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 thereinconstituting Excluded Assets.
Appears in 1 contract
Sources: Second Lien Guaranty and Collateral Agreement (Hornbeck Offshore Services Inc /La)
Collateral. Subject to the terms Each Security Interest herein granted shall secure all Secured Obligations, and is in all of the applicable Collateral DocumentsGrantor’s right, to secure the payment title and performance of the Obligations hereunderinterest in and to, pursuant to a Collateral Account Pledge, a Security Agreementor otherwise with respect to, the related financing statements following property 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, assets whether now owned or existing or hereafter acquired or arising:arising and regardless of where located (collectively, the “Collateral”):
(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;
Nasdaq Collateral Shares; (ii) to the extent relating to the Unfunded Capital Commitments all dividends, shares, securities, cash, instruments, moneys or property (A) representing a dividend, distribution or return of the Investors constituting Collateral capital in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, respect 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 (including, without limitation, any Dividend thereon), (B) resulting from a split-up (including, without limitation, a split-off), revision, reclassification, recapitalization or other similar change with respect to any of the Nasdaq Shares serving as collateral hereunder, (C) otherwise received in exchange for or converted from any of the Nasdaq Shares serving as collateral hereunder and any and all security and other property subscription warrants, rights or options issued to the holders of, or otherwise in respect of, any of such Nasdaq Shares or (D) in connection with a spin-off with respect to such CollateralNasdaq Shares; and (iii) in the event of any Merger Event in which Nasdaq, Inc. (the “Company”) is not the surviving entity, all shares of each class of the capital stock of the successor entity formed by or resulting from such Merger Event received with respect to the Nasdaq Shares serving as collateral hereunder and any other consideration that is exchanged for such Nasdaq Shares or into which such Nasdaq Shares are converted;
(ivb) each Collateral AccountAccount (as defined below), any Cash, Cash Equivalent Investments, securities (including, without limitation, the Nasdaq Collateral Shares), general intangibles, investment property, financial assets and other property that may from time to time, in each case, be deposited, credited, held or carried in such Collateral Accounts or that is delivered to or in possession or control of the Security Agent or the Custodian or any of the Security Agent’s or the Custodian’s agents pursuant to this Security Agreement or the Loan Agreement; all “security entitlements” as defined in §8-102(a)(17) of the UCC (as defined below) with respect to any of the foregoing and all income and profits on any of the foregoing, all dividends, interest and other payments and distributions with respect to any of the foregoing, all other rights and privileges appurtenant to any of the foregoing, including but not limited to any voting rights and all funds any redemption rights, and financial assets on deposit therein or credited thereto; and
(v) any substitutions for any of the foregoing and all any proceeds of any of the foregoing Collateral includingforegoing, without limitation, in each case whether now existing or hereafter arising; and
(1) all Proceeds (as defined below) of the records of the Guarantor concerning any of Collateral described in the foregoing Collateral; excluding clauses (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 (Aa) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing b) and (2) any dividends or anything to the contrary other distributions in this Credit Agreement respect of any shares of capital stock issued by Company in respect of any Nasdaq Collateral Shares or other securities constituting Collateral or any securities or other Loan Document (i) the term “property distributed in respect of or exchanged for any Nasdaq Collateral Shares or other securities constituting 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 into which 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 such Nasdaq 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 Shares or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”securities are converted, except in connection with any Swap Agreement, as provided thereinmerger or similar event or otherwise.
Appears in 1 contract
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 is collectively referred to as the “Collateral”:
(a) all accounts, cash and Cash Equivalents, chattel paper, deposit accounts, documents, equipment, general intangibles (including Intellectual Property owned by such Grantor and IP Agreements), instruments, inventory, investment property, letter-of-credit rights and any supporting obligations related to any of the foregoing;
(b) the commercial tort claims for which a claim has been filed in a court of competent jurisdiction the value of which would reasonably be expected to exceed $2,500,000 described on Schedule 1 and on any supplement thereto received by the Administrative Agent pursuant to Section 5.6;
(c) all books and records pertaining to the terms other property described in this Section 3.1;
(d) all property of such Grantor held by any Secured Party, including all property of every description, in the applicable Collateral Documentscustody of or in transit to such Secured Party for any purpose, to secure the payment and performance of the Obligations hereunderincluding safekeeping, 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 Agentcollection or pledge, for the benefit account of each of the Secured Parties, such Grantor or as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned to which such Grantor may have any right or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committedpower, 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;
(iie) 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 Accountf) to the extent usednot otherwise included, pursuant to the terms all proceeds of the Guarantor’s Governing Documentsforegoing; provided, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account)however, 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 that notwithstanding anything to the contrary in this Credit Agreement or any other Loan Document (ix) 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” Collateral shall not include any Portfolio InvestmentExcluded Property; provided, further, that, if and when any Portfolio Assets or any property shall cease to be Excluded ProceedsProperty, (iii) the term “Collateral” such property shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject deemed 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 (y) solely with respect to control agreements or other restrictions Holdings and the Borrower (vi) and only so long as the Administrative Agent has not exercised it rights under the Credit Agreement subject to the terms set forth therein during the occurrence and continuance of a Foreign Lien Trigger Event), the Collateral pledged by Holdings and the Secured Parties Borrower hereunder shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinbe limited to the respective Pledged Equity owned by it.
Appears in 1 contract
Sources: Security and Pledge Agreement (Cambium Networks Corp)