Hypothec. 2.1 For good and valuable consideration, and as continuing and collateral security for the payment and performance when due of all of the Secured Obligations, the Grantor hereby hypothecates in favour of the Holder (and with respect to incorporeal or intangible property, and corporeal movable property located outside of the Province of Quebec, hereby charges , assigns, and mortgages and creates a security interest in favour of the Holder in), the universality of all present and future movable property of the Grantor, both corporeal and incorporeal, now owned or hereafter acquired by the Grantor, including without limitation the following: 2.1.1 all present and future machinery and equipment of the Grantor, including tools, implements, furniture, rolling stock, vehicles, spare parts and additions; 2.1.2 all present and future property in stock and inventory of the Grantor whether in its possession, in transit or held on its behalf, including, without limitation, all movable property in reserve, raw materials, goods in process, finished products, packaging materials, property held by third parties pursuant to a rental, leasing, franchise, licence or other agreement entered into with or on behalf of the Grantor, property evidenced by bill of lading, animals, wares, as well a▇ ▇▇y other property held for sale, lease or processing in the manufacture or transformation of property intended for sale, for lease, or for use in providing a service by the Grantor in the ordinary course of operation of its enterprise; 2.1.3 all present and future claims of the Grantor of any nature or kind, whatever their cause, whether or not evidenced by any title, and whether or not such title is negotiable, bill of exchange or draft; and whether or ▇▇▇ they constitute book debts or trade accounts receivable, including, without limitation, all customer accounts, accounts receivable, rights of action, demands, judgements, contract rights, options, permits, licenses, consents, approvals, orders, rulings, quotas, subsidies, franchises, immunities, amounts on deposit, proceeds of sale, assignment or lease of any property, rights or titles, any indemnities payable under any contract of insurance whether or not such insurance is on property forming part of the Hypothecated Property and any indemnity or proceeds of expropriation, the whole which are now due or which may become due to the Grantor, together with all judgments and all other rights, benefits, guarantees and securities for the said claims which now or may hereafter exist in favour of the Grantor, and together with all books and accounts, titles, letters, invoices, papers and documents in any way evidencing or relating to all or any of the claims; 2.1.4 all present and future Securities, including, without limitation, all other Securities issued or received in substitution, renewal, addition or replacement of Securities, or issued or received on the purchase, redemption, conversion, cancellation or other transformation of Securities or issued or received by way of dividend or otherwise to holders of Securities, and all present and future instruments, bills of lading, warehouse receipts, documents or other evidences of title of the Grantor, and all interests of the Grantor in any partnership; 2.1.5 all present and future Intellectual Property Collateral, goodwill, other intangible property, monies, agreements and rights under agreements of the Grantor, as well as all rights in any action pertaining to the protection, in Canada or abroad, of any such Intellectual Property Collateral or rights, and all its present and future undertaking; 2.1.6 the proceeds of any sale, assignment, lease or other disposition of the Hypothecated Property any claim resulting from such a sale, assignment, lease or other disposition, as well as any property acquired in replacement thereof; 2.1.7 any present and future rights attached to the Hypothecated Property as well as the fruits and revenues thereof; and 2.1.8 all present and future titles, documents, records, receipts, invoices, accounts and data of the Grantor evidencing or relating to any of the Hypothecated Property including, without limitation, computer disks, tapes and related electronic data processing media, rights of the Grantor to retrieve the same from third parties, delivery receipts, catalogs, insurance certificates and the like; (all such present and future property being herein called the "HYPOTHECATED PROPERTY"). 2.2 The amount for which the hypothec in Section 2.1 is granted is TWENTY-FOUR MILLION Canadian dollars ($24,000,000), with interest from the date hereof at the rate of TWENTY-FIVE PERCENT (25%) per annum. 2.3 The hypothec which is granted in this Agreement constitutes a pledge of such of the Hypothecated Property which is delivered to or now in possession of the Holder, including the Specific Securities, as well as a pledge of any of the Hypothecated Property which may in the future be delivered to or held by the Holder to be initially held at the Holder's office at 3003 Tasman Drive, Santa Clara, California, the Ho▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇ny change of location. 2.4 The hypothec and security interest hereby created and granted do not and shall not extend to, and the Hypothecated Property shall not include, any contract, agreement, right, franchise, licence, lease or permit (each, a "CONTRACTUAL RIGHT") to which the Grantor is a party or of which the Grantor has the benefit, to the extent that the creation and granting of the hypothec and security interest herein would constitute a breach of the terms of or permit any Person to terminate one or more contractual rights, and the foregoing hypothec and security interest is constituted under the suspensive condition of obtaining the required authorizations or consents. The Grantor shall hold such contractual rights as mandatary of the Holder until such time as the suspensive condition is fulfilled in respect of such contractual right. The Grantor agrees that it shall, upon the request of the Holder and whether before or after a default by the Grantor has occurred and the security herein has become enforceable, use all commercially reasonable efforts to obtain any consent required to permit any material contractual rights to be subjected to the hypothec and security interest hereby created and granted.
Appears in 1 contract
Hypothec. 2.1 For good and valuable consideration, and as continuing and collateral security for the payment and performance when due of all of the Secured Obligations, the 3.1 The Grantor hereby hypothecates in favour of the Holder (and Holder, for an amount of CDN$35,000,000 with respect to incorporeal or intangible propertyinterest at the rate of 25% per annum, and corporeal movable property located outside of the Province of Quebec, hereby charges , assigns, and mortgages and creates a security interest in favour of the Holder in), the universality of all present and future movable property of the Grantor, both corporeal and incorporeal, now owned or hereafter acquired by the Grantor, with the exception of the Excluded Collateral (as defined below), but including without limitation the following:
2.1.1 (a) all present and future machinery and equipment of the Grantor, including tools, implements, furniture, rolling stock, vehicles, spare parts and additions;
2.1.2 all present and future property in stock and inventory of the Grantor whether in its possession, in transit or held on its behalf, including, without limitation, all tools, implements, furniture and vehicles;
(b) all present and future inventory of the Grantor including, without limitation, all property in stock, movable property in reserve, raw materials, goods in process, finished products, packaging materials, property held by third parties pursuant to a rental, leasing, franchise, licence or other agreement entered into with or on behalf of the Grantor, property evidenced by bill of lading, animals, wares, as well a▇ ▇▇y as any other property held for sale, lease or processing in the manufacture or transformation of property intended for sale, for lease, or for use in providing a service by the Grantor in the ordinary course of operation of its enterprise;
2.1.3 (c) all present and future claims of the Grantor of any nature or kind, whatever their cause, whether or not evidenced by any title, and whether or not such title is negotiable, bill of exchange or draft; and whether or ▇▇▇ they constitute book debts or trade accounts receivable, including, without limitation, all customer accounts, accounts receivable, rights of action, demands, judgementsjudgments, contract rights, options, permits, licenses, consents, approvals, orders, rulings, quotas, subsidies, franchises, immunities, amounts on deposit, proceeds of sale, assignment or lease of any property, rights or titles, and any indemnities payable under any contract of insurance whether or not such insurance is on property forming part of the Hypothecated Property and any indemnity or proceeds of expropriation(as hereinafter defined), the whole which are now due or which may become due to the Grantor, together with all judgments and all other rights, benefits, guarantees and securities for the said claims which are now or may hereafter exist in favour of the Grantor, and together with all books and accounts, client lists, client records, client files, titles, letters, invoices, papers and documents in any way evidencing or relating to all or any of the claims;
2.1.4 (d) all present and future Securitiessecurities, instruments, bills of lading, warehouse receipts, documents or other evidences of title of the Grantor;
(e) all client lists, client records, client files, titles, documents, records, receipts, invoices and accounts evidencing any of the aforesaid Hypothecated Property or relating thereto including, without limitation, computer disks, tapes and related data processing media and rights of the Grantor to retrieve same from third parties, provided that any such property can include redactions with regard to any information regarding Excluded Collateral referenced or contained therein;
(f) the proceeds of any sale, assignment, lease or other disposition of the Hypothecated Property, any claim resulting from such a sale, assignment, lease or other disposition, as well as any property acquired in replacement thereof (it being understood that this clause shall not be interpreted as permitting the Grantor to dispose of the Hypothecated Property in contravention of the provisions of this Agreement);
(g) any indemnity or proceeds of expropriation payable in respect of the Hypothecated Property;
(h) any rights attached to the Hypothecated Property, as well as the fruits and revenues thereof;
(i) all other Securities securities issued or received in substitution, renewal, addition or replacement of Securities, or issued or received on the purchase, redemption, conversion, cancellation or other transformation of Securities securities or issued or received by way of dividend or otherwise to holders of Securities, and all present and future instruments, bills of lading, warehouse receipts, documents or other evidences of title of the Grantor, and all interests of the Grantor in any partnership;
2.1.5 all present and future Intellectual Property Collateral, goodwill, other intangible property, monies, agreements and rights under agreements of the Grantor, as well as all rights in any action pertaining to the protection, in Canada or abroad, of any such Intellectual Property Collateral or rights, and all its present and future undertaking;
2.1.6 the proceeds of any sale, assignment, lease or other disposition of the Hypothecated Property any claim resulting from such a sale, assignment, lease or other disposition, as well as any property acquired in replacement thereof;
2.1.7 any present and future rights attached to the Hypothecated Property as well as the fruits and revenues thereof; and
2.1.8 all present and future titles, documents, records, receipts, invoices, accounts and data of the Grantor evidencing or relating to any of the Hypothecated Property including, without limitation, computer disks, tapes and related electronic data processing media, rights of the Grantor to retrieve the same from third parties, delivery receipts, catalogs, insurance certificates and the like; securities. (all such present and future property being herein called the "HYPOTHECATED PROPERTY"“Hypothecated Property”).
2.2 The amount for which 3.2 Notwithstanding the hypothec in Section 2.1 is granted is TWENTY-FOUR MILLION Canadian dollars ($24,000,000)foregoing, with interest from all intellectual property rights of the date hereof at the rate of TWENTY-FIVE PERCENT (25%) per annum.
2.3 The hypothec which is granted in this Agreement constitutes a pledge of such Grantor shall not form part of the Hypothecated Property (collectively, the “Excluded Collateral”). The Excluded Collateral includes, without limitation, the following:
(a) any and all copyright rights, copyright applications, copyright registrations and like protection in each work or authorship and derivative work thereof, whether published or unpublished and whether or not the same also constitutes a trade secret, now or hereafter existing, created, acquired or held;
(b) any and all trade secrets, and any and all intellectual property rights in computer software and computer software products now or hereafter existing, created, acquired or held;
(c) any and all design rights which is delivered may be available to the Grantor now or now in possession hereafter existing, created, acquired or held;
(d) all patents, patent applications and like protections, including, without limitation, improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the Holder, including the Specific Securities, as well as a pledge of same;
(e) any of the Hypothecated Property which may in the future be delivered to or held by the Holder to be initially held at the Holder's office at 3003 Tasman Drive, Santa Clara, California, the Hotrade-▇▇▇▇ ▇▇ ▇▇and service ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇ny change rights, whether registered or not, applications to register and registrations of location.
2.4 The hypothec the same and security interest hereby created and granted do not and shall not extend tolike protections, and the Hypothecated Property shall not include, any contract, agreement, right, franchise, licence, lease or permit (each, a "CONTRACTUAL RIGHT") to which entire goodwill of the business of the Grantor is connected with and symbolized by such trade-marks; and
(f) rights in any claim against a third party in connection with the protection of any such intellectual property rights or of which the Grantor has the benefit, to the extent that the creation and granting of the hypothec and security interest herein would constitute a breach of the terms of infringement thereof in Canada or permit any Person to terminate one or more contractual rights, and the foregoing hypothec and security interest is constituted under the suspensive condition of obtaining the required authorizations or consents. The Grantor shall hold such contractual rights as mandatary of the Holder until such time as the suspensive condition is fulfilled in respect of such contractual right. The Grantor agrees that it shall, upon the request of the Holder and whether before or after a default by the Grantor has occurred and the security herein has become enforceable, use all commercially reasonable efforts to obtain any consent required to permit any material contractual rights to be subjected to the hypothec and security interest hereby created and grantedabroad.
Appears in 1 contract
Sources: Loan Agreement (Enerkem Inc.)
Hypothec. 2.1 For good and valuable consideration, and as continuing and collateral security for the payment and performance when due of all of the Secured Obligations, the Grantor hereby hypothecates in favour of the Holder (and with respect to incorporeal or intangible property, and corporeal movable property located outside of the Province of Quebec, hereby charges charges, assigns, and mortgages and creates a security interest in favour of the Holder in), the universality of all present and future movable property of the Grantor, both corporeal and incorporeal, now owned or hereafter acquired by the Grantor, including without limitation the following:
2.1.1 all present and future machinery and equipment of the Grantor, including tools, implements, furniture, rolling stock, vehicles, spare parts and additions;
2.1.2 all present and future property in stock and inventory of the Grantor whether in its possession, in transit or held on its behalf, including, without limitation, all movable property in reserve, raw materials, goods in process, finished products, packaging materials, property held by third parties pursuant to a rental, leasing, franchise, licence or other agreement entered into with or on behalf of the Grantor, property evidenced by bill ▇▇▇▇ of lading, animals, wares, as well a▇ ▇▇y as any other property held for sale, lease or processing in the manufacture or transformation of property intended for sale, for lease, or for use in providing a service by the Grantor in the ordinary course of operation of its enterprise;
2.1.3 all present and future claims of the Grantor of any nature or kind, whatever their cause, whether or not evidenced by any title, and whether or not such title is negotiable, bill ▇▇▇▇ of exchange or draft; and whether or ▇▇▇ not they constitute book debts or trade accounts receivable, including, without limitation, all customer accounts, accounts receivable, rights of action, demands, judgements, contract rights, options, permits, licenses, consents, approvals, orders, rulings, quotas, subsidies, franchises, immunities, amounts on deposit, proceeds of sale, assignment or lease of any property, rights or titles, any indemnities payable under any contract of insurance whether or not such insurance is on property forming part of the Hypothecated Property and any indemnity or proceeds of expropriation, the whole which are now due or which may become due to the Grantor, together with all judgments and all other rights, benefits, guarantees and securities for the said claims which now or may hereafter exist in favour of the Grantor, and together with all books and accounts, titles, letters, invoices, papers and documents in any way evidencing or relating to all or any of the claims;
2.1.4 all present and future Securities, including, without limitation, all other Securities issued or received in substitution, renewal, addition or replacement of Securities, or issued or received on the purchase, redemption, conversion, cancellation or other transformation of Securities or issued or received by way of dividend or otherwise to holders of Securities, and all present and future instruments, bills of lading, warehouse receipts, documents or other evidences of title of the Grantor, and all interests of the Grantor in any partnership;
2.1.5 all present and future Intellectual Property Collateral, goodwill, other intangible property, monies, agreements and rights under agreements of the Grantor, as well as all rights in any action pertaining to the protection, in Canada or abroad, of any such Intellectual Property Collateral or rights, and all its present and future undertaking;
2.1.6 the proceeds of any sale, assignment, lease or other disposition of the Hypothecated Property any claim resulting from such a sale, assignment, lease or other disposition, as well as any property acquired in replacement thereof;
2.1.7 any present and future rights attached to the Hypothecated Property as well as the fruits and revenues thereof; and
2.1.8 all present and future titles, documents, records, receipts, invoices, accounts and data of the Grantor evidencing or relating to any of the Hypothecated Property including, without limitation, computer disks, tapes and related electronic data processing media, rights of the Grantor to retrieve the same from third parties, delivery receipts, catalogs, insurance certificates and the like; (all such present and future property being herein called the "HYPOTHECATED PROPERTY").
2.2 The amount for which the hypothec in Section 2.1 is granted is TWENTY-FOUR MILLION Canadian dollars ($24,000,000), with interest from the date hereof at the rate of TWENTY-FIVE PERCENT (25%) per annum.
2.3 The hypothec which is granted in this Agreement constitutes a pledge of such of the Hypothecated Property which is delivered to or now in possession of the Holder, including the Specific Securities, as well as a pledge of any of the Hypothecated Property which may in the future be delivered to or held by the Holder to be initially held at the Holder's office at 3003 Tasman Drive, Santa Clara, California, the Ho▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇ny change of location.
2.4 The hypothec and security interest hereby created and granted do not and shall not extend to, and the Hypothecated Property shall not include, any contract, agreement, right, franchise, licence, lease or permit (each, a "CONTRACTUAL RIGHT") to which the Grantor is a party or of which the Grantor has the benefit, to the extent that the creation and granting of the hypothec and security interest herein would constitute a breach of the terms of or permit any Person to terminate one or more contractual rights, and the foregoing hypothec and security interest is constituted under the suspensive condition of obtaining the required authorizations or consents. The Grantor shall hold such contractual rights as mandatary mandatory of the Holder until such time as the suspensive condition is fulfilled in respect of such contractual right. The Grantor agrees that it shall, upon the request of the Holder and whether before or after a default by the Grantor has occurred and the security herein has become enforceable, use all commercially reasonable efforts to obtain any consent required to permit any material contractual rights to be subjected to the hypothec and security interest hereby created and granted.
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