Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”): (i) all Accounts; (ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein; (iii) all Chattel Paper; (iv) all Documents; (v) all Equipment; (vi) all General Intangibles; (vii) all Goods; (viii) all Instruments, including all Pledged Securities; (ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory; (x) all Investment Property; (xi) all Intellectual Property; (xii) all Pledged Collateral; (xiii) all Records and all books and records pertaining to the Collateral; (xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights; (xv) all Supporting Obligations; (xvi) all cash and cash equivalents; (xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing; (xviii) all other personal property whatsoever of such Grantor; and (xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing. (b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations. (c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower. (d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower. (e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 4 contracts
Sources: Guarantee and Collateral Agreement, Guarantee and Collateral Agreement, Guarantee and Collateral Agreement (CDW Finance Corp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including the Guarantees, each Grantor hereby confirms the pledge assigns and grant pledges to the Notes Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Notes Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all AccountsProperty;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinAccounts;
(iii) all Chattel Paper;
(iv) all DocumentsCommercial Tort Claims listed on Schedule II hereto;
(v) all Deposit Accounts;
(vi) all Documents;
(vii) all Equipment;
(viviii) all General Intangibles;
(viiix) all GoodsInstruments;
(viiix) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringssupporting obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (A) any letter-of-credit rights, (B) any Securitization Assets, (C) motor vehicles and other assets subject to certificates of title, (D) any Equity Interests in any Unrestricted Subsidiary or any other Senior Secured Note Document, the Equity Interests and other securities of any Subsidiary acquired pursuant to a Permitted Acquisition financed with Indebtedness incurred pursuant to Section 7.03(g) of the Senior Credit Agreement if such Equity Interests serve as security for such Indebtedness or if the terms of such Indebtedness prohibit the creation of any other lien on such Equity Interests, (E) more than 65% of the issued and outstanding voting Equity Interests of any Material Foreign Subsidiary that is a direct or indirect subsidiary of Holdings Holdings, (F) Equity Interests of any Foreign Subsidiary that is not a Material Foreign Subsidiary, (G) Equity Interests of any Subsidiary of a Foreign Subsidiary that is a direct or indirect Subsidiary of Holdings, (H) Equity Interests of any Foreign Subsidiary that are pledged pursuant to a Foreign Pledge Agreement, (I) Equity Interests of any Person that is not an indirect, wholly owned by Subsidiary of Holdings III, (J) (i) if there are outstanding Obligations under the Senior Credit Facilities, any Grantor will constitute Collateral securing Note Obligations for asset with respect to which the benefit of Senior Secured Note Holders only Administrative Agent has confirmed in writing to the extent Issuer its determination that the costs of providing a security interest in such Equity Interests and other securities can secure asset or perfection thereof is excessive in view of the benefits to be obtained by the secured parties under the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 Credit Agreement or Rule 3-16 of Regulation S-X (ii) if there are no outstanding Obligations under the Securities Act Senior Credit Facilities, any asset with respect to which the board of directors or the senior management of the Issuer has confirmed in writing to the Trustee and the Notes Collateral Agent its reasonable determination that the costs of providing a security interest in such asset or perfection thereof is excessive in view of the benefits to be obtained by the Secured Parties, (K) security interests prohibited by law or by agreements containing anti-assignment clauses not overridden by the UCC or other applicable law or (L) any General Intangible, Investment Property or other rights of a Grantor arising under any contract, lease, instrument, license or other document or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties assets subject thereto if (but only to the extent necessary to not be subject to that) the grant of a security interest therein would (x) constitute a violation of a valid and enforceable restriction in respect of such requirement) (any such Equity Interests General Intangible, Investment Property or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations rights in favor of the Note Secured Parties. For a third party or under any law, regulation, permit, order or decree of any Governmental Authority, unless and until all required consents shall have been obtained (for the avoidance of doubt, the restrictions described herein shall not include negative pledges or similar undertakings in favor of a lender or other financial counterparty) or (y) expressly give any other party in respect of any such Equity Interests contract, lease, instrument, license or other document, the right to terminate its obligations thereunder, provided, however, that the limitation set forth in clause (L) above shall remain not affect, limit, restrict or impair the grant by a Grantor of a security interest pursuant to this Agreement in any such Collateral securing to the Loan Obligations extent that an otherwise applicable prohibition or restriction on such grant is rendered ineffective by any applicable law, including the Uniform Commercial Code. Each Grantor shall, if requested to do so by the Trustee, use commercially reasonable efforts to obtain any such required consent that is reasonably obtainable with respect to Collateral which the Trustee reasonably determines to be material.
(b) Each Grantor hereby irrevocably authorizes the Notes Collateral Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including including
(xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Notes Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Notes Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 4 contracts
Sources: Security Agreement (Freescale Semiconductor, Ltd.), Security Agreement (Freescale Semiconductor, Ltd.), Security Agreement (Freescale Semiconductor Inc)
Security Interest. (a) 3.1 As security for the prompt, complete and indefeasible payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations Secured Obligations:
(other than contingent obligations), each Grantor hereby confirms a) uniQure Holdings grants to Lender a first ranking right of pledge on its shares in uniQure and uniQure IP;
(b) uniQure grants to Lender a first ranking right of pledge on its shares in its Dutch subsidiaries identified on the pledge Schedule 1 hereto and grant to the Collateral Agent, its successors and permitted assigns a security interest in 100% of the security interest capital stock of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due US Borrower;
(whether at stated maturity, by acceleration or otherwisec) of the Obligations Borrower (other than contingent obligations), each Grantor hereby pledges and excluding US Borrower) grants to the Collateral AgentLender a first ranking right of pledge on its (a) trade, its successors intercompany and permitted assigns, for the ratable benefit of the Secured Parties, insurance receivables; (b) movable assets and (c) Deposit Accounts; and
(d) US Borrower grants to Lender a security interest in all of US Borrower’s right, title or title, and interest in and to the following personal property whether now owned or to any hereafter acquired: (a) receivables; (b) equipment; (c) fixtures; (d) general intangibles (except as described below); (e) inventory; (f) Investment property; (g) Deposit Accounts; (h) Cash;
(i) Goods; and all other tangible and intangible personal property of the following assets US Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, US Borrower and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time of Borrower’s property in the future may acquire any right, title possession or interest (but excluding any Excluded Collateral, collectively, under the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents control of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorLender; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any each of the foregoing and all collateral security and guarantees given by any person with respect to any of (collectively, the foregoing“Collateral”).
(b) 3.2 Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note DocumentLoan Document to the contrary, in no event shall the Collateral include, and the Borrower shall not be deemed to have granted a security interest in: (i) Intellectual Property; provided, however, that the Collateral shall include all accounts and general intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the Equity Interests and Intellectual Property (the “Rights to Payment”); or (ii) any of the Borrower’s rights or interests in or under, any license, contract, permit, instrument, security or franchise to which the Borrower is a party or any of its rights or interests thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract, permit, instrument, security or franchise, result in a breach of the terms of, or constitute a default under, such license, contract, permit, instrument, security or franchise (other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (UCC or any other lawapplicable law (including the Dutch and the United States Bankruptcy Code) or principles of equity); provided, rule that immediately upon the ineffectiveness, lapse or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements termination of any subsidiary of Holdings due such provision the Collateral shall include, and the Borrower shall be deemed to have granted a security interest in, all the fact rights and interests described in the foregoing clause (ii) as if such provision had never been in effect. Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that such subsidiary’s Equity Interests and other securities secure a security interest in the Senior Secured Notes and/or underlying Intellectual Property is necessary to have a security interest in the related guaranteesRights to Payment, then the Equity Interests Collateral shall automatically, and other securities of such subsidiary shall automatically be deemed not to be part effective as of the Collateral securing date of this Agreement, include the Note Obligations in favor of the Note Secured Parties (but only Intellectual Property to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent permit perfection of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority Lender’s security interests interest in the shares of Equity Interests and other securities that are so deemed Rights to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsPayment.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 3 contracts
Sources: Loan and Security Agreement (uniQure N.V.), Loan and Security Agreement (uniQure B.V.), Loan and Security Agreement (uniQure B.V.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, including the Guarantees, each Grantor hereby confirms the pledge assigns and grant pledges to the Notes Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Notes Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperCommercial Tort Claims listed on Schedule II hereto;
(iv) all DocumentsDeposit Accounts;
(v) all Documents;
(vi) all Equipment;
(vivii) all Fixtures;
(viii) all General Intangibles;
(viiix) all Goods;
(viiix) all Instruments, including all Pledged Securities;
(ixxi) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxii) all Investment Property;
(xixiii) all Intellectual PropertyPledged Securities;
(xiixiv) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting ObligationsLetters of Credit and Letter-of-Credit Rights;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorMoney; and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in any Excluded Asset or any other Senior Secured Note Document, Excluded Security.
(b) Each Grantor hereby irrevocably authorizes the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Notes Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties Agent (but only to the extent necessary to Notes Collateral Agent shall not be subject to such requirementrequired) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Notes Collateral Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Notes Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 3 contracts
Sources: Pledge and Security Agreement, Pledge and Security Agreement (Avaya Inc), Pledge and Security Agreement (Avaya Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) To secure all of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge Merchant's present and grant future obligations to the Collateral AgentTransFirst, its successors Third-Party Sender, and permitted assigns the ODFI (TransFirst, its Third-Party Sender, and the ODFI are referred to as "Secured Party" for purposes of the security interest of the Original Guarantee and Collateral this Section 6.2) under this Agreement, for Merchant hereby grants to Secured Party liens and security interests in all of Merchant's rights to and interests in the ratable benefit of the Loan Secured Partiesfollowing, presently existing or hereafter acquired, and as security for the payment or performance, as the case may be, in full when due any interest earned thereon and proceeds thereof (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “"Collateral”):
"): (i) all Accounts;
the Reserve Account, (ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cashSettlement Account, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
any deposit account now or hereafter maintained by Merchant with the Secured Party, (iv) all Documents;
any of Merchant's funds now or hereafter in the possession of the Secured Party, and (v) all Equipment;
amounts now or hereafter owing to Merchant under this Agreement. Each Secured Party is hereby authorized (vi) all General Intangibles;
(vii) all Goods;
(viii) all Instrumentsand any related notice and demand are hereby expressly waived), including all Pledged Securities;
(ix) all Inventory or documents of titleto set off, customs receipts, insurance certificates, shipping documents recoup and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records appropriate and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of apply any and all of the foregoing and all offspringssuch amounts owing, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Documentfunds held, the Equity Interests account balances and other securities Collateral against and on account of any direct Merchant's obligations under this Agreement, whether such obligations are liquidated, unliquidated, fixed, contingent matured or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency)unmatured. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements case of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case consisting of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file deposit account with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other financial institution, ▇▇▇▇▇▇▇▇ hereby agrees that Secured Party liable shall have control thereof and the depository will (and is hereby authorized to) comply with instructions originated by Secured Party directing disposition of funds in the deposit account without further consent by ▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ agrees to duly execute and deliver to Secured Party such additional instruments, documents and agreements as a member may be reasonably requested to perfect and confirm the liens, security interests in deposit accounts and other Collateral set forth in this Agreement. ▇▇▇▇▇▇▇▇ agrees that Secured Party may file such financing statements in ▇▇▇▇▇▇▇▇'s name describing any or all of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any and take such other Secured Party by virtue of this Agreement or otherwise (except action as referred they may require in order to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Personperfect their liens and security interests therein.
Appears in 3 contracts
Sources: Ach Terms and Conditions, Ach Terms and Conditions, Ach Terms and Conditions
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or in, to and under any and all of the following assets and properties in each case properties, whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(vi) all Instruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged Securities;Investment Property:
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(x) all Goods and Fixtures;
(xi) all Money, cash, cash equivalents, Deposit Accounts, Securities Accounts and Commodities Accounts;
(xii) all Letter-of-Credit Rights;
(xiii) all Commercial Tort Claims listed on Schedule III and any supplement thereto;
(xiv) the Collateral Account, and all letters of credit under which such Grantor is the beneficiary cash, Money, Securities and Letter of Credit Rightsother investments deposited therein;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalentsSecurity Entitlements in any or all of the foregoing;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorIntellectual Property; and
(xixxviii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing; provided that Article 9 Collateral shall not include, and the Security Interest shall not attach to, any of the following assets or property, each being an “Excluded Asset”:
(i) any asset (including any Equipment or Inventory owned by a Grantor that is subject to a Lien permitted under Section 7.01(i) of the Credit Agreement securing Indebtedness permitted under Section 7.03 of the Credit Agreement to finance or refinance such Equipment or Inventory) or any lease, license, franchise, charter, authorization, contract or agreement to which any Loan Party is a party, together with any rights or interest thereunder, in each case, if and to the extent security interests therein (x) are prohibited by or in violation of any applicable Law, (y) requires any governmental consent or consent of a third party that is not a Loan Party or an Affiliate of a Loan Party (to the extent the applicable Loan Party has used commercially reasonable efforts to obtain such consent) that has not been obtained or (z) in the case of any lease, license, franchise, charter, authorization, contract or agreement, is prohibited by or in violation of a term, provision or condition of any such lease, license, franchise, charter, authorization, contract or agreement to which such Grantor is a party, except, in the case of each of the foregoing clauses (x), (y) and (z), to the extent that such prohibition or restriction would be rendered ineffective under the UCC or other applicable Law or principle of equity; provided, however, that, notwithstanding the foregoing, the Collateral shall include (and the Security Interest shall attach) at such time as the contractual or legal prohibition shall no longer be applicable and to the extent severable, shall attach to any portion of such asset, lease, license, franchise, charter, authorization, contract or agreement not subject to the prohibitions specified in clauses (x), (y) or (z) above; provided, further, that the Excluded Assets referred to in this clause (i) shall not include any Proceeds or receivables of any such asset, lease, license, franchise, charter, authorization, contract or agreement;
(ii) the Excluded Equity Interests;
(iii) any “intent-to-use” application for registration of a Trademark filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ Act, 15 U.S.C. § 1051, prior to the filing and acceptance of a “Statement of Use” pursuant to Section 1(d) of the ▇▇▇▇▇▇ Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the ▇▇▇▇▇▇ Act with respect thereto (it being understood that after such filing and acceptance such intent-to-use application shall be automatically subject to the security interest granted herein and deemed to be included in the Collateral);
(A) any leasehold interest (including any ground lease interest) in real property, (B) any fee interest in owned real property with a fair market value below $10,000,000 and (C) any Fixtures affixed to any real property to the extent (x) such Fixtures are affixed to any real property with a fair market value below $10,000,000 or (y) a security interest in such Fixtures may not be perfected by the filing of a UCC financing statement in the jurisdiction of organization of the applicable Grantor.
(v) (A) as extracted collateral, (B) timber to be cut, (C) farm products and (D) manufactured homes;
(vi) any particular asset, if the pledge thereof or the security interest therein would result in material adverse tax consequences to any Grantor as reasonably determined by the Borrower with notice in writing (which shall reasonably identify the basis for such determination) to the Administrative Agent;
(vii) any specifically identified asset with respect to which the Administrative Agent has determined (in its reasonable judgment) that the costs of obtaining, perfecting or maintaining a Security Interest or pledge in such asset exceed the fair market value thereof (as determined by the Borrower in its reasonable judgment) or the practical benefit to the Secured Parties afforded thereby;
(viii) Excluded Intercompany Debt; and
(ix) motor vehicles, aircraft and other assets subject to certificates of title or ownership (including, without limitation, aircraft, airframes, aircraft engines or helicopters, or any equipment or other assets constituting a part thereof, in each case to the extent subject to Federal Aviation Act registration requirements, and rolling stock; provided that if and when any property shall cease to be an Excluded Asset, a Lien on and security interest in such property shall be deemed granted therein and the provisions of this Agreement shall apply to such property, including the Proceeds of any General Intangible, Instrument, license, property right, permit or any other contract or agreement (except to the extent such Proceeds are an Excluded Assets). Notwithstanding anything to the contrary, the Proceeds of, or in respect of, any Excluded Assets shall constitute Article 9 Collateral (except to the extent such Proceeds are an Excluded Asset).
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements or continuation statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate describe the collateral covered thereby in any manner that the Collateral Agent reasonably determines is necessary or advisable to ensure the perfection of the security interest in the Collateral granted under this Agreement including indicating the Collateral as “all assets” assets or all personal property of such Grantor or words of similar effect, effect and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further irrevocably authorized to file (to the extent the Grantors have not already made such filings) Intellectual Property Security Agreements, or supplement or amendments thereof, executed by the applicable Grantor(s) with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such offices). Without limiting the rights and remedies of the Collateral Agent arising under Applicable Law and under the Loan Documents, the Parties agree that in the event an Intellectual Property Security Agreement, or supplement or amendments thereof, is no longer a reasonably acceptable form of documentation to file with the United States Patent and Trademark Office or the United States Copyright Office (or any successor offices), as applicable, the authorization granted in the preceding sentence extends to any other documents as may be and actions reasonably necessary for the purpose of perfectingto evidence, confirmingrecord, continuing, enforcing confirm or protecting otherwise perfect the Security Interest granted by each Grantorin IP Collateral consisting of U.S. issued Patents, without U.S. registered Trademarks or U.S. registered Copyrights (and applications for any of the signature of any Grantor, and foregoing) naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The , but, except as provided under Article V hereof or under the Loan Documents, the Collateral Agent agrees, upon request by the Borrower and at the Borroweris not authorized to execute any such documents on any Grantor’s expense, to promptly furnish copies of such filings behalf (to the Borrowerextent such execution is necessary).
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 3 contracts
Sources: Second Lien Security Agreement, Second Lien Security Agreement (Advantage Solutions Inc.), First Lien Security Agreement (Advantage Solutions Inc.)
Security Interest. (a) As security for the prompt, complete and indefeasible payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) and performance of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant Company grants to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of Agent and the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured PartiesPurchasers, a security interest in and Lien upon all of such Company’s right, title or title, and interest in or and to any all Fixtures and all of the following assets and properties personal property, in each case case, whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest arising and wherever located (but excluding any Excluded Collateral, collectively, the “UCC Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles; (e) Inventory; (f) Investment Property (but excluding thirty-five percent (35%) of the capital stock of any foreign Subsidiary that constitutes a Permitted Investment); (g) Deposit Accounts; (h) Cash; (i) all Accounts;
Goods; (ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iiij) all Chattel Paper;
Commercial Tort Claims described in Schedule 4.15 (ivtogether with Commercial Tort Claims subject to a further writing provided in accordance with Section 6.3); (k) all Documents;
Contracts; (v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xil) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records ; and all books other tangible and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other intangible personal property whatsoever of such GrantorCompany whether now or hereafter owned or existing or acquired by such Company, and wherever located; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any each of the foregoing and all collateral security books and guarantees given by any person with respect records pertaining to each the foregoing. Notwithstanding any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests Collateral shall not under any circumstance include, and no security interest is granted in (i) any rights or interest in any contract, lease, permit, license, or license agreement covering real or personal property of a Company if under the terms of such contract, lease, permit, license, or license agreement, or applicable law with respect thereto, the grant of a security interest or lien therein is prohibited as a matter of law or under the terms of such contract, lease, permit, license, or license agreement and such prohibition or restriction has not been waived or the consent of the other securities party to such contract, lease, permit, license, or license agreement has not been obtained (provided, that, (A) the foregoing exclusions of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only this clause (i) shall in no way be construed (1) to apply to the extent that such Equity Interests and any described prohibition or restriction is unenforceable under Section 9-406, 9-407, 9-408, or 9-409 of the UCC or other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other applicable law, rule or regulation(2) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only apply to the extent necessary that any consent or waiver has been obtained that would permit Agent’s security interest or lien notwithstanding the prohibition or restriction on the pledge of such contract, lease, permit, license, or license agreement and (B) the foregoing exclusions of this clause (i) shall in no way be construed to not be subject to such requirement) (limit, impair, or otherwise affect any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority ’s continuing security interests in and liens upon any rights or interests of a Company in or to (1) monies due or to become due under or in connection with any described contract, lease, permit, license, or license agreement (including any Accounts), or (2) any proceeds from the shares sale, license, lease, or other dispositions of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amendedcontract, modified or interpreted by the SEC to permit (or is replaced with another rule or regulationlease, permit, license, or license agreement); (ii) any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be assets subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Mississippi Loan Documents such additional Equity Interests and other securities. This Section 3.01(bas of the date of the First Closing, (iii) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
any cash or cash equivalents described in clause (cvii) Each Grantor hereby authorizes of the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” definition of such Grantor or words of similar effectPermitted Indebtedness, and (iiiv) contain the information required by Article 9 assets subject to a Lien permitted under clause (vii) of the Uniform Commercial Code definition of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower“Permitted Liens”.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 3 contracts
Sources: Senior Secured Convertible Promissory Note Purchase Agreement (Kior Inc), Senior Secured Promissory Note and Warrant Purchase Agreement (Kior Inc), Senior Secured Promissory Note and Warrant Purchase Agreement (Kior Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged SecuritiesGoods;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryInstruments;
(x) all Investment Intellectual Property;
(xi) all Intellectual PropertyInventory;
(xii) all Investment Property other than the Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xiv) all minerals, oil, gas and As-Extracted Collateral;
(xv) all Supporting Obligations;books and records pertaining to the Article 9 Collateral; and
(xvi) all cash substitutions, replacements, accessions, products and cash equivalents;
proceeds (xviiincluding insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds of suit) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in any Credit Documents, this Agreement shall not constitute a grant of a security interest in (and the Article 9 Collateral shall not include) and the other provisions of the Credit Documents with respect to Collateral need not be satisfied with respect to (a) motor vehicles or other assets subject to certificates of title and commercial tort claims, (b) any assets over which the granting of security interests in such assets would be prohibited by an enforceable contractual obligation binding on the assets that existed at the time of the acquisition thereof and was not created or made binding on the assets in contemplation or in connection with the acquisition of such assets (except in the case of assets owned on the Issue Date or acquired after the Issue Date with Indebtedness of the type permitted pursuant to Section 4.03(b)(iv) of the Indenture and any equivalent provision in any Other Second-Priority Lien Obligations Document), applicable law or regulation (in each case, except to the extent such prohibition is unenforceable after giving effect to applicable provisions of the Uniform Commercial Code, other Senior Secured Note Documentthan proceeds thereof, the Equity Interests and other securities assignment of any direct which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibitions) or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests security interests would require obtaining the consent of any governmental authority or would result in materially adverse tax consequences as reasonably determined by the Issuer in writing delivered to the Collateral Agent, (c) those assets with respect to which, in the reasonable judgment of the Applicable Agent and the Issuer, evidenced in writing delivered to the Agent, the costs or other securities consequences of obtaining or perfecting such a security interest are excessive in view of the benefits to be obtained by the Secured Parties therefrom, (d) any Letter of Credit Rights (other than to the extent a Lien thereon can secure the Senior Secured Notes and/or the guarantees be perfected by filing a customary financing statement), (e) any Excluded Securities, (f) any Pledgor’s right, title or interest in respect thereof without Rule 3-10 any license, contract or Rule 3-16 of Regulation S-X under the Securities Act (agreement to which such Pledgor is a party or any other lawof its right, rule title or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due interest thereunder to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guaranteesextent, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent, that such a grant would violate the terms of applicable law or of such license, contract or agreement, or result in a breach of the terms of, or constitute a default under, any such license, contract or agreement to which such Pledgor is a party (other than to the extent necessary that any such term would be rendered ineffective pursuant to not Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or regulation (including the Bankruptcy Code) or principles of equity); provided that, immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect, (g) any equipment or other asset owned by any Pledgor that is subject to a purchase money lien or a Capitalized Lease Obligation, in each case, as permitted under the Indenture and not prohibited by any other Credit Document, if the contract or other agreement in which such requirementLien is granted (or the documentation providing for such Capitalized Lease Obligation) prohibits or requires the consent of any person other than the Pledgors as a condition to the creation of any other security interest on such equipment or asset and, in each case, such prohibition or requirement is permitted by under the Indenture and not prohibited by any other Credit Document, (h) any foreign collateral or credit support with respect to such foreign collateral (other than any such Equity Interests assets pledged pursuant to the Pledge Agreement), (i) any real property (owned or leased) or oil and gas properties (owned or leased) other securitiesthan the Mortgaged Properties, and (j) any asset at any time that is not then subject to a Lien securing First-Priority Lien Obligations at such time (the foregoing clauses (a) through (j), the “Excluded Note CollateralAssets”). In such eventWith respect to the Collateral, no control agreements or control arrangements will be required with respect to any Deposit Accounts, Securities Accounts, Commodity Contracts or any other asset, the Security Documents may be amended perfection of a security interest in which specifically requires a control arrangement or modified, without control agreement (other than the consent delivery of Pledged Securities to the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, Applicable Agent to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted required by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirementArticle II). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property” or words of similar effect. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 3 contracts
Sources: Collateral Agreement (EP Energy Corp), Collateral Agreement (EP Energy Corp), Collateral Agreement (EP Energy Corp)
Security Interest. All of the Borrowers' Obligations constitute one (a1) As security for loan secured by the Agent's Liens on the Collateral now or from time to time hereafter granted by any Borrower to the Agent. To secure timely payment or performance, as the case may be, and performance in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Borrower hereby confirms the pledge sells, assigns, conveys, mortgages, pledges, hypothecates and grant transfers and hereby grants to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured PartiesLenders, a security interest in right of setoff against and a continuing Lien upon all of such Borrower's right, title or and interest in or and to any and all of the following assets property and properties interests in each case property, whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
Borrower and wheresoever located: (i) all Accounts;
; (ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
General Intangibles; (iii) all Chattel Paper;
Fixtures; (iv) all Documents;
Inventory; (v) all Equipment;
; (vi) all General Intangibles;
Intellectual Property; (vii) all Goods;
Investment Property; (viii) all Instruments, including all Pledged Securities;
of such Borrower's deposit accounts (general or special) with any financial institution with which such Borrower maintains deposits; (ix) all Inventory of such Borrower's now owned or documents hereafter acquired monies, and any and all other property and interests in property of titlesuch Borrower now or hereafter coming into the actual possession, customs receiptscustody or control of the Agent or any Lender or any agent or affiliate of the Agent or any Lender in any way or for any purpose (whether for safekeeping, insurance certificatesdeposit, shipping documents and other written materials related to the purchase custody, pledge, transmission, collection or import of any Inventory;
otherwise); (x) all Investment Property;
Documents, Instruments and Chattel Paper of such Borrower; (xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect insurance policies relating to any of the foregoing.
, including without limitation business interruption insurance; (bxii) Notwithstanding anything all of such Borrower's books and records relating to any of the contrary in this Agreement or any other Senior Secured Note Documentforegoing; (xiii) all accessions and additions to, the Equity Interests substitutions for, and other securities replacements of any direct or indirect subsidiary of Holdings that are owned by the foregoing; and (xiv) all cash collections from, and all other cash and non-cash proceeds of, any Grantor will constitute Collateral securing Note Obligations for of the benefit foregoing including, without limitation, proceeds of Senior Secured Note Holders only and unearned premiums with respect to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or insurance policies insuring any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (and claims against any such Equity Interests or other securitiesPerson for loss of, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party damage to, or in any way alter or modifydestruction of, any obligation or liability of any Grantor with respect to or arising out all of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 3 contracts
Sources: Loan and Security Agreement (Lois/Usa Inc), Loan and Security Agreement (Lois/Usa Inc), Loan and Security Agreement (Lois/Usa Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit RightsSupporting Obligations;
(xv) all Supporting Obligations;cash and cash equivalents and Deposit Accounts, and
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing. Notwithstanding the foregoing, in no event shall any control agreements be required to be obtained in respect thereof.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Parent Borrower and at the Borrower’s its expense, to promptly furnish copies of such filings to the Parent Borrower.
(dc) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Parent Borrower and at the Borrower’s its expense, to promptly furnish copies of such filings to the Parent Borrower.
(ed) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 3 contracts
Sources: Guarantee and Collateral Agreement (VWR Funding, Inc.), Guarantee and Collateral Agreement (VWR Funding, Inc.), Guarantee and Collateral Agreement (VWR Funding, Inc.)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Pledgor hereby confirms the pledge and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Money, whether held in a Deposit Account or in the possession of the Administrative Agent;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryInvestment Property;
(x) all Investment PropertyLetter of Credit Rights;
(xi) all Intellectual Property;
(xii) all Pledged CollateralCommercial Tort Claims described on Schedule V hereto, as updated from time to time;
(xiii) all Records and all books and records pertaining to the Collateralcash held in any Securities Account;
(xiv) all letters of credit under which such Grantor is books and Records pertaining to the beneficiary and Letter of Credit Rights;Article 9 Collateral; and
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle or any other Senior Secured Note Documentproperty covered by a certificate of title or ownership, whether now owned or hereafter acquired, (b) any Excluded Equity Interests, (c) any Letter of Credit Rights, except to the Equity Interests extent a security interest therein can be perfected by the filing of Uniform Commercial Code financing statements, and other securities to the extent such Pledgor is not required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose, (d) any Pledgor’s right, title or interest in any lease, license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such lease, license, contract or agreement, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of or create a right of termination in favor of or require the consent of any direct other party thereto (other than such Pledgor), such lease, license, contract or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only agreement (other than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulationprinciples of equity), (e) requiring separate financial statements assets to the extent the granting of such subsidiary to a security interest therein would be filed with the SEC (prohibited or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted restricted by the SEC to require (or is replaced with another rule or regulation, or any other applicable law, rule or regulation is adopted, which would require) (including any requirement to obtain the filing with the SEC (or any other governmental agency) of separate financial statements consent of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests Governmental Authority), (f)(i) payroll and other securities secure employee wage and benefit accounts, (ii) tax accounts, including, without limitation, sales tax accounts, (iii) escrow accounts and (iv) fiduciary or other trust accounts, and, in the Senior Secured Notes and/or case of clauses (i) through (iv), the related guaranteesfunds or other property held in or maintained in such account, then (g) any Commercial Tort Claim with a value not in excess of $5.0 million, as determined in good faith by the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties Borrower, (but only h) any governmental licenses or State or local franchises, charters or authorizations, to the extent necessary security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby, after giving effect to not be subject to the applicable anti-assignment provisions of the Uniform Commercial Code of any applicable jurisdiction notwithstanding such requirementprohibition or restriction, (i) assets if the granting of a security interest therein would result in (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modifiedi) material adverse tax consequences (including, without limitation, as a result of the operation of Section 956 of the Code or any similar law or regulation in any applicable jurisdiction) or (ii) material adverse regulatory consequences, in each case as reasonably determined by the Borrower and with the consent of the Note TrusteeAdministrative Agent (which consent will not to be unreasonably withheld, delayed or conditioned), (j) those assets as to which the Collateral AgentAdministrative Agent and the Borrower reasonably agree in writing that any of the cost, difficulty, burden or consequences of obtaining such a security interest are excessive in relation to the benefit to the Lenders of the security to be afforded thereby, (k) any Senior Secured Note Holder United States “intent to use” trademark application or any holder intent-to-use service ▇▇▇▇ application filed pursuant to Section 1(b) of Other Pari Passu Lien Obligations, the ▇▇▇▇▇▇ Act to the extent necessary to release that the first-priority grant of a security interests interest therein would impair the validity or enforceability of, or render void or voidable or result in the shares cancellation of Equity Interests the applicable Pledgor’s right, title or interest therein or any trademark or service ▇▇▇▇ issues as a result of such application under applicable federal law, after which period such application shall be automatically subject to the security interest granted herein and other securities that are so deemed to no longer constitute part of be included in the Collateral securing the Note Collateral, (l) any assets and proceeds thereof subject to a Capital Lease Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms or a purchase money Lien permitted by Section 6.02(i) of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary the documents providing for such Capital Lease Obligation or purchase money Lien do not permit such assets and proceeds thereof to not be the pledged to the Administrative Agent and (m) any assets acquired after the date hereof subject to any a Lien permitted by Section 6.02(c) of the Credit Agreement that existed on such financial statement requirement). In assets at the time of the acquisition thereof and was not incurred in contemplation of such eventacquisition so long as the documents providing for such Lien do not permit such assets to be pledged to the Administrative Agent (the assets described in clauses (a) through (l) above, collectively, the Security Documents may be amended or modified, without “Excluded Assets”); provided that such exclusions shall not apply to the consent proceeds of any of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsforegoing property.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Administrative Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral (including all Article 9 Collateral consisting of Pledged Collateral) or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Administrative Agent may reasonably determine is necessary to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets”, whether now owned or hereafter acquired, or words of similar effect. Each Grantor Pledgor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. As of the Closing Date, the filing jurisdictions for filing of each applicable Uniform Commercial Code financing statement is as set forth on Schedule IV. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Administrative Agent as secured party. The Notwithstanding anything to the contrary herein, no Pledgor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerPledgor constituting Patents, Trademarks or Copyrights.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 3 contracts
Sources: Abl Guarantee and Collateral Agreement (CPG Newco LLC), Term Loan Guarantee and Collateral Agreement (CPG Newco LLC), Term Loan Guarantee and Collateral Agreement (CPG Newco LLC)
Security Interest. (a1) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(ia) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iiib) all Chattel Paper;
(ivc) all cash, Money and Deposit Accounts;
(d) all Documents;
(ve) all Equipment;
(vif) all General Intangibles;
(viig) all GoodsInstruments;
(viiih) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xi) all Investment Property;
(xij) all Letter-of-Credit Rights;
(k) all Intellectual Property;
(xiil) all Pledged CollateralCommercial Tort Claims, including those described on Schedule IV hereto;
(xiiim) all Records and all books and records pertaining to each of the Collateralfollowing:
(i) Securities Accounts;
(xivii) Investment Property credited to Securities Accounts from time to time and all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held Security Entitlements in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantorrespect thereof; and
(xixiii) all cash held in any Securities Account or Deposit Account;
(n) all books and Records pertaining to the extent not otherwise included, Article 9 Collateral; and
(o) all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Loan Document, (i) the Equity Interests Article 9 Collateral will not include any Pledged Collateral and other securities (ii) the Article 9 Collateral (and any components comprising thereof) will not include, this Agreement will not constitute a grant of any direct or indirect subsidiary of Holdings that are owned by any Grantor a security interest in, the security interest granted hereunder will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only not attach to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (no representation, warranty, covenant or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (provision contained in this Agreement or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary Security Document shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agentapply to, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsExcluded Asset.
(c2) Each Subject to the limitations set forth in Section 4.01(6), each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral (including all Article 9 Collateral consisting of Pledged Collateral) or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including including:
(xa) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor; and
(yb) a description of collateral that describes such property in any manner as the Collateral Agent may reasonably determine is necessary to ensure the perfection of the security interest in the case Collateral granted under this Agreement, including describing such property as “all assets”, whether now owned or hereafter acquired, or words of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatessimilar effect. Each Grantor agrees to provide such information to the Collateral Agent promptly upon reasonable written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d3) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted in Intellectual Property by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e4) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no Grantor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral of such Grantor.
(5) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 3 contracts
Sources: Term Loan Guarantee and Collateral Agreement, Term Loan Guarantee and Collateral Agreement (Amneal Pharmaceuticals, Inc.), Abl Guarantee and Collateral Agreement (Impax Laboratories, LLC)
Security Interest. (a) As a)As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including each Guaranty, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all EquipmentGeneral Intangibles and Permits;
(vi) all General IntangiblesInstruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged SecuritiesIntellectual Property Collateral;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xix) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xi) all Goods and Fixtures;
(xii) all Letter-of-Credit Rights;
(xiii) all Commercial Tort Claims described on Schedule III from time to time;
(xiv) the Cash Collateral Account (and all letters of credit under which such Grantor is the beneficiary cash, securities and Letter of Credit Rightsother investments deposited therein);
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit Security Entitlements in any or all of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.;
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filingsi) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effectOwned Trademarks, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) applications in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office to register Owned Trademarks or United States Copyright Office (or any successor office) such documents as may be necessary for service marks on the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature basis of any Grantor’s “intent to use” such Owned Trademarks or service marks will not be deemed to be Collateral unless and until a “Statement of Use” or “Amendment to Allege Use” has been filed and accepted in the United States Patent and Trademark Office, whereupon such application shall be automatically subject to the security interest granted herein and naming any Grantor or the Grantors as debtors and deemed to be included in the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings (ii) that notwithstanding anything to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained contrary in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant heretoAgreement, this Agreement shall not constitute a grant of a security interest in (A) motor vehicles or other assets subject to certificates of title the perfection of a security interest in which is excluded from the New York UCC in the relevant jurisdiction, (B) any Equity Interests other than Pledged Equity, (C) any Equipment that is subject to a purchase money lien or a capital lease permitted under the Credit Agreement to the extent the documents relating to such purchase money lien or capital lease validly prohibits such Equipment to be construed as creating subject to the Security Interest created hereby, (D) any specifically identified asset with respect to which the Administrative Agent has confirmed in writing to the Borrower its determination that the costs or other consequences (including adverse tax consequences) of providing a partnership security interest is excessive in view of the benefits to be obtained by the Lenders, (E) any General Intangible, Investment Property, Accounts, Intellectual Property Collateral, promissory notes, chattel paper, Permit or joint venture among other such rights of a Grantor arising under any contract, lease, instrument, license, or other document if (but only to the extent that) the grant of a security interest therein would (x) constitute a violation of a valid and enforceable restriction in respect of, or result in the abandonment, invalidation or unenforceability of any right, title or interest of such Grantor in, such General Intangible, Investment Property, Accounts, Intellectual Property Collateral, promissory notes, chattel paper, Permit or other such rights in favor of a third party or under any law, regulation, permit, order, judgment or decree of any Governmental Authority and such contractual restriction is otherwise not restricted by the Credit Agreement, unless and until all required consents shall have been obtained (for the avoidance of doubt, the restrictions described herein are not negative pledges or similar undertakings in favor of a lender or other financial counterparty) or (y) expressly give any other party in respect of any such contract, lease, instrument, franchise, permit, license or other document relating to any such General Intangible, Investment Property, Intellectual Property Collateral, Accounts, promissory notes, chattel paper, Permit or other such rights of a Grantor or give any other party the right to terminate its obligations or such Grantor’s rights under such contract, lease, instrument, franchise, permit, license or other document (whether expressly in such document or otherwise under applicable law) to the extent that such right is not restricted by the Credit Agreement, provided however, that the limitation set forth in clause (E)above shall not affect, limit, restrict or impair the grant by a Grantor of a security interest pursuant to this Agreement in any such Collateral to the extent that an otherwise applicable prohibition or restriction on such grant is rendered ineffective by any applicable law, including the New York UCC and provided further that the Proceeds from any such contract, lease, instrument or other document shall not be excluded from the definition of Article 9 Collateral or (G) Margin Stock unless the applicable requirements of Regulations T, U, and X of the Board of Governors of the Federal Reserve have been satisfied. Each Grantor shall, if requested to do so by the Administrative Agent, use commercially reasonable efforts to obtain any other Secured Party, any Grantor and/or any other Personsuch required consent that is reasonably obtainable with respect to Collateral which the Administrative Agent reasonably determines to be material.
Appears in 2 contracts
Sources: Credit Agreement (Bloomin' Brands, Inc.), Credit Agreement (Osi Restaurant Partners, LLC)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)of such Grantor, including the Guaranty, each Grantor hereby confirms the pledge pledges and grant collaterally assigns to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all of such Grantor’s right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account all Chattel Paper (as defined in the Revolving Credit Agreement) including, without limitation, all Tangible Chattel Paper and all cash, securities, Instruments and other property deposited or required to be deposited thereinElectronic Chattel Paper);
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment and Fixtures;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Goods;
(vii) all Instruments;
(viii) all Instruments, including all Pledged SecuritiesIntellectual Property;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Intellectual Property Licenses;
(x) all Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all Money, cash and cash equivalents;
(xviixiii) all letters of credit, Letter-of-Credit Rights and other Supporting Obligations;
(xiv) all Deposit Accounts and Accounts, Securities Accounts, including Commodities Accounts and all cashother demand, marketable deposit, time, savings, cash management, passbook and similar accounts maintained by such Grantor with any bank or other financial institution and all monies, securities, securities entitlements, financial assets Instruments and other funds held in investments deposited or on deposit required to be deposited in any of the foregoing;
(xviiixv) all other personal property whatsoever Security Entitlements in any or all of such Grantor; andthe foregoing;
(xixxvi) all Commercial Tort Claims described on Schedule 2 hereto (as such schedule may be supplemented pursuant to the extent not otherwise included, all Proceeds, Section 3.03(j) hereof);
(xvii) all accessions to and to, substitutions and replacements for the foregoing, together with all, books and products of records, customer lists, credit files, computer files, programs, printouts and other computer materials and records related thereto and any and all of the foregoing and all offsprings, rents profits and products of General Intangibles at any time evidencing or relating to any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.; and
(bxviii) Notwithstanding to the extent not otherwise included, all Proceeds and products, whether tangible or intangible, of any and all of the foregoing, including, without limitation, resulting from any rebates or refunds, whether for taxes or otherwise, and all proceeds of such Proceeds, or any portion thereof or interest therein, and the proceeds thereof, and to the extent not otherwise included, any indemnity, warranty, or guaranty payable by reason of loss or damage to, and all supporting obligations, collateral security and guarantees given by any Person with respect to any of the foregoing; provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in any Excluded Property; provided, however, that “Excluded Property” shall not include any Proceeds, substitutions or any other Senior Secured Note Document, the Equity Interests and other securities replacements of any direct Excluded Property unless such Proceeds, substitutions or indirect subsidiary of Holdings that are owned by any replacements would independently constitute Excluded Property.
(b) Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect or being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if applicable, any organizational identification number or incorporation number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(dc) The Collateral Agent is further irrevocably authorized to file with the United States Patent and Trademark Office or the United States Copyright Office (or any successor officeoffice thereof) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing perfecting or protecting confirming the Security Interest granted by each Grantor, with notice to each, but without the signature of any Grantorany, Grantor (only if such signature cannot reasonably be obtained by the Collateral Agent), and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ed) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Credit Agreement (ServiceTitan, Inc.), Credit Agreement (ServiceTitan, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor Pledgor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Second-Priority Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Second-Priority Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercollection accounts, Deposit Accounts, Securities Accounts, Commodity Accounts and any cash or other assets held in such accounts and any security entitlements and other rights with respect thereto;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) loans receivable and all Instruments, including all Pledged Securities;other Payment Intangibles
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryGoods;
(x) all Investment PropertyInstruments;
(xi) all Intellectual Property (including all claims for, and rights to ▇▇▇ for, past or future infringements or violations of any Intellectual Property and all income, royalties, damages and payments now or hereafter due and payable with respect to any Intellectual Property, including damages and payments for past or future infringements or violations of any Intellectual Property);
(xii) all Pledged CollateralInventory (including reusable water containers);
(xiii) all Records and all books and records pertaining to Investment Property other than the Pledged Collateral, which is governed by Article II;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xv) all Supporting ObligationsCommercial Tort Claims, individually in excess of $3,000,000, as described from time to time on Schedule IV;
(xvi) all cash minerals, oil, gas and cash equivalentsAs-Extracted Collateral;
(xvii) all Deposit Accounts books and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of records pertaining to the foregoing;Article 9 Collateral; and
(xviii) all other personal property whatsoever substitutions, replacements, accessions, products and Proceeds (including insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds of such Grantor; and
(xixsuit) and to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in any Notes Indenture Documents, this Agreement or any shall not constitute a grant of a security interest in (and the Article 9 Collateral shall not include), and the other Senior Secured Note Documentprovisions of the Notes Indenture Documents with respect to Collateral need not be satisfied with respect to, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsProperty.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesrelates and (iii) a description of Collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Collateral granted under this Agreement, including describing such property as “all assets” or “all personal property” or words of similar effect. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Pledgor shall be required to take any action under the laws of any jurisdiction other than the United States of America (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerPledgor constituting Patents, Trademarks or Copyrights.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Second-Priority Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Collateral Agreement (Second Lien) (DS Services of America, Inc.), Collateral Agreement (Second Lien) (DS Services of America, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesIntellectual Property;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual PropertyLetter of Credit Rights;
(xii) all Pledged CollateralCommercial Tort Claims;
(xiii) to the extent not included in the definition of “General Intangibles”, all Records choses in action and causes of action and all other intangible personal property of any Pledgor of every kind and nature (other than Accounts) now owned or hereafter acquired by any Pledgor, including corporate or other business records, indemnification claims, contract rights (including rights under leases, whether entered into as lessor or lessee, Swap Agreements and other agreements), Intellectual Property, goodwill, registrations, franchises, tax refund claims and any letter of credit, guarantee, claim, security interest or other security;
(xiv) all other personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoing clauses);
(xv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle covered by a certificate of title or ownership, (b) any assets with respect to which the Collateral and Guarantee Requirement or the other paragraphs of Section 5.11 of the Credit Agreement need not be satisfied by reason of Section 5.11(g) of the Credit Agreement, (c) any Equity Interests, the pledge of which is governed by Section 3.01 hereof, (d) any Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose or (e) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, any license, contract or agreement to which such Pledgor is a party (other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulation) requiring separate financial statements principles of such subsidiary to be filed with equity); provided, that immediately upon the SEC (ineffectiveness, lapse or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements termination of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeprovision, the Collateral Agentshall include, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests Pledgor shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be have granted a part of the Collateral securing the Note Obligations security interest in, all such rights and interests as if such provision had never been in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationseffect.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. relates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property.” Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent, the Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Affinion Group, Inc.), Credit Agreement (Affinion Group, Inc.)
Security Interest. (a1) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(ia) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iiib) all Chattel Paper;
(ivc) all cash, Cash Equivalents and Deposit Accounts;
(d) all Documents;
(ve) all Equipment;
(vif) all General Intangibles;
(viig) all Goods
(h) all Instruments;
(viiii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xj) all Investment Property;
(xik) all Letter of Credit Rights;
(l) all Intellectual Property;
(xiim) all Pledged CollateralCommercial Tort Claims, including those described on Schedule IV hereto;
(xiiin) all Records and all books and records pertaining to each of the Collateralfollowing:
(i) Securities Accounts;
(xivii) Investment Property credited to Securities Accounts or Deposit Accounts from time to time and all letters of credit under which such Grantor is the beneficiary and Letter of Credit RightsSecurity Entitlements in respect thereof;
(xv) all Supporting Obligations;
(xviiii) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in any Securities Account or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorDeposit Account; and
(xixiv) all other Money in the possession of the Collateral Agent;
(o) all books and Records pertaining to the extent not otherwise includedArticle 9 Collateral; and
(p) all proceeds, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Loan Document, the Equity Interests Article 9 Collateral will not include, this Agreement will not constitute a grant of a security interest in and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor the security interest granted hereunder will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject attach to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsExcluded Asset.
(c2) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral (including all Article 9 Collateral consisting of Pledged Collateral) or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including including:
(xa) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor;
(yb) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates; and
(c) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets”, whether now owned or hereafter acquired, or words of similar effect. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d3) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e4) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no Grantor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral of such Grantor.
(5) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Abl Guarantee and Collateral Agreement (PET Acquisition LLC), Abl Guarantee and Collateral Agreement (PET Acquisition LLC)
Security Interest. (a) 3.1 As security for the prompt, complete and indefeasible payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors Agent and permitted assigns, for the ratable benefit of the Secured Parties, Lender a security interest in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and Borrower’s personal property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in acquired, including the future may acquire any right, title or interest following (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles (other than Intellectual Property); (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments Goods; and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents tangible and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other intangible personal property whatsoever of such GrantorBorrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing.
(b) Notwithstanding anything ; provided, however, that the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and proceeds from the contrary in this Agreement sale, licensing or disposition of all or any other Senior Secured Note Documentpart, or rights in, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for Intellectual Property (the benefit of Senior Secured Note Holders only “Rights to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agencyPayment”). In Notwithstanding the event foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that Rule 3-10 or Rule 3-16 of Regulation S-X under a security interest in the Securities Act requires or underlying Intellectual Property is amended, modified or interpreted by necessary to have a security interest in the SEC Rights to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guaranteesPayment, then the Equity Interests Collateral shall automatically, and other securities of such subsidiary shall automatically be deemed not to be part effective as of the Collateral securing date of this Agreement, include the Note Obligations in favor of the Note Secured Parties (but only Intellectual Property to the extent necessary to permit perfection of Lender’s security interest in the Rights to Payment. Upon payment in full in cash of the Secured Obligations (other than inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of this Agreement) and at such time as this Agreement has been terminated, the Agent and Lender shall, at Borrower’s sole cost and expense, release their Liens in the Collateral and all rights therein shall revert to Borrower.
3.2 Notwithstanding anything else set forth herein, the Collateral shall specifically exclude the Excluded Assets for so long as the PSA and SPSA remain in effect, but upon the termination or expiration of the PSA and the SPSA, the Excluded Assets (to the extent they do not consist of Intellectual Property) shall automatically be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent security interest granted in favor of Agent and Lender hereunder and become part of the Note TrusteeCollateral.
3.3 Notwithstanding the broad grant of the security interest set forth in Section 3.1, above, the Collateral Agent, any Senior Secured Note Holder or any holder shall not include more than 65% of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the presently existing and hereafter arising issued and outstanding shares of Equity Interests and other securities that are so deemed capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations vote for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, directors or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsmatter.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Loan and Security Agreement (Acelrx Pharmaceuticals Inc), Loan and Security Agreement (Acelrx Pharmaceuticals Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agentpledges, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors on behalf of and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of its right, title or and interest in or in, to any and under all of the following assets property and properties in each case other assets, whether tangible or intangible, wherever located, and now owned by or at any time owing to, or hereafter acquired by or arising in favor of, such Grantor or in Grantor, and regardless of where located (all of which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, are collectively referred to as the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account all Chattel Paper (as defined in the Revolving Credit Agreement) including Electronic Chattel Paper and all cash, securities, Instruments and other property deposited or required to be deposited thereinTangible Chattel Paper);
(iii) all Chattel Papercash and cash equivalents;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles (including all Intellectual Property);
(viii) all Instruments, including all Pledged SecuritiesGoods;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Instruments;
(x) all Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged CollateralLetter-of-Credit Rights and Supporting Obligations;
(xiii) all Records and all books and records pertaining to the CollateralDeposit Accounts;
(xiv) all letters of credit under which such Grantor is Commercial Tort Claims as specified from time to time in Schedule IV hereto (as the beneficiary and Letter of Credit Rightssame may be updated from time to time in accordance with the terms hereof);
(xv) all Supporting Obligations;books, records, files, correspondence, computer programs, tapes, disks and related data processing software which contain information identifying or pertaining to any of the Article 9 Collateral or any Account Debtor or showing the amounts thereof or payments thereon or otherwise necessary or helpful in the realization thereon or the collection thereof; and
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all accessions to, substitutions for and replacements, products and cash and non-cash Proceeds (including Stock Rights) of the foregoing (including any claims to any items referred to in this definition and all offspringsany claims against third parties for loss of, rents profits and products damage to or destruction of any or all of the foregoing and all collateral security and guarantees given by any person Collateral or for proceeds payable under or unearned premiums with respect to policies of insurance) in whatever form, including cash, negotiable instruments and other instruments for the payment of money, Chattel Paper, collateral agreements and other documents. Notwithstanding the foregoing or anything herein to the contrary, in no event shall the “Article 9 Collateral” include or the Security Interest attach to any of Excluded Assets; provided, however, that the foregoingSecurity Interest shall immediately attach to, and the Article 9 Collateral shall immediately include, any such asset (or portion thereof) upon such asset (or such portion) ceasing to be an Excluded Asset.
(b) Notwithstanding anything to Each Grantor hereby irrevocably authorizes the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act Agent (or any other law, rule or regulationits designee) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant U.S. jurisdiction any financing statements (including fixture filings) statements, with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate describe the collateral covered thereby in any manner that the Collateral Agent reasonably determines is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including indicating the Collateral as “all assets” of such Grantor or words of similar effect, effect and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction UCC for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents ), the Patent Security Agreements, Trademark Security Agreements or Copyright Security Agreements, as may be necessary applicable, for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantorin Article 9 Collateral consisting of issued, without the signature of any Grantorregistered or applied for United States Patents, and naming any Grantor United States Trademarks, United States Copyrights or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrowerexclusive United States Licenses.
(ec) The Security Interest is and the security interest granted pursuant to Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Collateral Agreement (Graftech International LTD), Collateral Agreement (Graftech International LTD)
Security Interest. (a) As collateral security for the prompt payment or performance, as the case may be, and performance in full when due of the Indebtedness (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor Debtor hereby pledges and grants assigns (as collateral) to the Collateral Agent, its successors and permitted assigns, for grants the ratable benefit of the Secured Parties, Agent a continuing lien on and security interest in in, all of such Debtor’s right, title or and interest in or and to any and all of the following assets and properties in each case following, whether tangible or intangible, wherever located, and now owned or at any time hereafter arising or acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest and wherever located (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i1) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii2) all Chattel Paper;
(iv3) all DocumentsCommercial Tort Claims;
(v4) all EquipmentDeposit Accounts;
(vi5) all General Intangibles;
(vii6) all GoodsEquipment;
(viii7) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x8) all Documents;
(9) all computer records (“Computer Records”) and Software, whether relating to the foregoing Collateral or otherwise, but in the case of such Software, subject to the rights of any non-affiliated licensee of software and any cash collateral, deposit account or investment account established or maintained hereunder, including, without limitation, under Section 6.3 hereof,
(10) all Instruments;
(11) all Investment Property;
(xi12) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix13) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offspringsin cash or otherwise, rents profits and products of any of the property described in the foregoing clauses (a) through (i) and all collateral security liens, security, rights, remedies and guarantees given by any person claims of such Debtor with respect thereto; provided, however, that “Collateral” shall not include rights under or with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement General Intangible, license, permit or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only authorization to the extent that any such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 General Intangible, license, permit or Rule 3-16 of Regulation S-X under the Securities Act (authorization, by its terms or any other by law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with prohibits the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulationassignment of, or any other lawthe granting of a security interest in, rule the rights of a grantor thereunder or regulation is adopted, which would require) the filing with the SEC (be invalid or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (unenforceable upon any such Equity Interests assignment or other securities, “Excluded Note Collateral”)grant. In such event, the Security Documents may be amended or modified, without the consent The pledge and grant of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority a security interests interest in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests Proceeds shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically not be deemed to be a part give the applicable Debtor any right to dispose of any of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only andCollateral, except as may otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, be permitted herein or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonCredit Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Noble International, Ltd.), Credit Agreement (Noble International, Ltd.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Guarantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the "Security Interest") in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Guarantor or in which such Grantor Guarantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “"Article 9 Collateral”"):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter-of-Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle covered by a certificate of title or ownership, (b) any assets (including Equity Interests) with respect to which the Collateral and Guarantee Requirement or the other Senior Secured Note Documentparagraphs of Section 5.10 of the Credit Agreement need not be satisfied by reason of Section 5.10(h) of the Credit Agreement, the (c) any assets (including Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only Interests) to the extent that that, as of the Closing Date, and for so long as, such grant of a security interest would violate a contractual obligation binding on such asset, (d) any Equity Interests of any person acquired by a Guarantor after the Closing Date pursuant to Section 6.04(j) of the Credit Agreement if, and to the extent that, and for so long as, (A) such grant of a security interest would violate applicable law or any contractual obligation binding upon such Equity Interests and other securities can secure (B) such law or obligation existed at the Senior Secured Notes and/or time of the guarantees acquisition thereof and was not created or made binding upon such Equity Interests in respect thereof without Rule 3-10 contemplation of or Rule 3-16 of Regulation S-X under in connection with the Securities Act (or any other law, rule or regulation) requiring separate financial statements acquisition of such subsidiary to be filed with Subsidiary (provided, that the SEC foregoing clause (B) shall not apply in the case of a joint venture, including a joint venture that is a Subsidiary) or (e) any other governmental agency). In the event that Rule 3-10 or Rule 3-16 Letter of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only Credit Rights to the extent necessary any Guarantor is required by applicable law to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, apply the Security Documents may be amended or modified, without the consent proceeds of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements a drawing of such subsidiary, then the Equity Interests and other securities Letter of such subsidiary shall automatically be deemed to be Credit for a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsspecified purpose.
(cb) Each Grantor Guarantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Guarantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Guarantor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as "all assets" or "all property". Each Grantor Guarantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorGuarantor, without the signature of any GrantorGuarantor, and naming any Grantor Guarantor or the Grantors Guarantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (TRW Automotive Inc), Guarantee and Collateral Agreement (TRW Automotive Inc)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)its Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter of Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii1) Securities Accounts, (2) Financial Assets credited to Securities Accounts or Deposit Accounts from time to time and all Security Entitlements in respect thereof, (3) all Pledged Collateralcash held any Securities Account or Deposit Account and (4) all other money in the possession of the Collateral Agent;
(xiii) all Records and timber to be cut;
(xiv) all other personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoing clauses);
(xv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle covered by a certificate of title or ownership, whether now owned or hereafter acquired, (b) any other Senior Secured Note DocumentEquity Interests in any Subsidiary of either Issuer, (c) (i) the Bucksport Co-Gen Assets, (ii) the Excluded Minority Interests, (iii) any Equity Interests acquired after the Closing Date in a Person that is not a Subsidiary if, and to the extent that, and for so long as, a grant of a security interest in such Equity Interests would violate applicable law or an enforceable contractual obligation binding on or relating to such Equity Interests (if such obligation exited at the time of acquisition of such Equity Interests and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Equity Interests), and (iv) any assets acquired after the Closing Date, to the extent that, and for so long as, granting a security interest in such assets would violate an enforceable contractual obligation binding on such assets that existed at the time of acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness pursuant to Section 4.03(b)(iv) of the Indenture that is secured by a Permitted Lien), (d) any property excluded from the definition of Pledged Collateral by virtue of the proviso to Section 3.01 hereof, (e) any Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose or (f) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any license, contract or agreement to which such Pledgor is a party (other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulation) requiring separate financial statements principles of such subsidiary to be filed with equity); provided, that immediately upon the SEC (ineffectiveness, lapse or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements termination of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeprovision, the Collateral Agentshall include, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests Pledgor shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be have granted a part of the Collateral securing the Note Obligations security interest in, all such rights and interests as if such provision had never been in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationseffect.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filingsfilings and filings with respect to timber to be cut) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The , including providing within 30 days of any reasonable request therefor legal descriptions of real property (other than real property subject to a mortgage in favor of the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, Agent) on which timber to promptly furnish copies be cut of such filings to the Borrower.
(d) Pledgor is located. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Pledgor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerPledgor constituting Patents, Trademarks or Copyrights.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Collateral Agreement (Verso Sartell LLC), Collateral Agreement (Verso Paper Corp.)
Security Interest. (a) As security for To secure the payment or performancetimely repayment of the principal of, as and interest on, the case may beAdvances, in full and all other Obligations of the Borrower to any Secured Party, including, without limitation, the Aggregate Contingent Interest, and the prompt performance when due (whether at stated maturity, by acceleration or otherwise) of all covenants of the Loan Obligations (Borrower hereunder and under any other than contingent obligations)Transaction Document, each Grantor hereby confirms whether now or hereinafter existing or arising, due or to become due, direct or indirect, the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor Borrower hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a continuing, first priority security interest in in, and assignment of, all of the Borrower’s rights, titles and interests in, to and under all of the following, whether now or hereafter owned, existing or arising: all assets of the Borrower, including but not limited to all right, title and interest of the Borrower in the Pledged Policies (unless and until such Policies are sold as provided by Section 2.7 of this Loan Agreement) and proceeds thereof; all accounts receivable, notes receivable, claims receivable and related proceeds including but not limited to, cash, loans, securities, accounts; contract rights; the contracts with and rights to and against the Trustees, the Custodian and/or the Securities Intermediary, as applicable; the Collection Account, the Payment Account, the Policy Account and any other account of the Borrower (excluding only the Borrower Account); reserve accounts; escrow agreements and related books and records; the rights under any purchase agreements relating to such Policies; all data, documents and instruments contained in the Collateral Packages; and such other assets, tangible or intangible, real or personal, as reasonably may be required by the Administrative Agent to fully secure any Advances contemplated herein. All of the rights and assets described in the previous sentence are herein referred to collectively as “Collateral”; provided, however, that this definition of “Collateral” does not limit any other collateral that may be pledged to secure the Advances under any other Transaction Document.
(b) The Borrower shall file such financing statements, and execute and deliver such agreements, certificates and documents, and take such other actions, as the Administrative Agent requests in order to perfect, evidence or protect the security interest granted pursuant to Section 2.6(a), including without limitation delivering a collateral assignment in respect of each Pledged Policy subject to this Loan Agreement, naming the Administrative Agent, on behalf of the Lenders, as the collateral assignee, filed with, and acknowledged to have been filed by, the applicable Issuing Insurance Company; provided, that the foregoing collateral assignment shall not apply to the portion of the face amount that is retained by a third party under any Retained Death Benefit Policy. On or prior to the initial Advance Date and each Advance Date related to an Additional Policy Advance, if any, the Borrower shall deliver or cause to be delivered completed but unsigned Change Forms for the Subject Policies to the Securities Intermediary. The Borrower shall cause the Securities Intermediary to execute all such Change Forms in blank to be held by the Securities Intermediary. If an Issuing Insurance Company updates its Change Forms, at the request of the Administrative Agent, the Borrower shall deliver or cause to be delivered completed but unsigned updated Change Forms for the related Pledged Policies within five (5) Business Days of such request. The Borrower shall cause the Securities Intermediary to execute such Change Forms in blank to be held by the Securities Intermediary. The Borrower grants to the Administrative Agent, as its irrevocable attorney-in-fact and otherwise, the right, in the Administrative Agent’s sole and absolute discretion following acceleration or maturity of the Obligations of the Borrower under this Loan Agreement, to complete or direct the Securities Intermediary to complete and send any and all Change Forms previously delivered to it by or on behalf of the Borrower or otherwise obtained by the Administrative Agent, to the applicable Issuing Insurance Companies. The Borrower hereby acknowledges that the foregoing grant has been coupled with an interest. The Borrower hereby authorizes the Administrative Agent to file such financing statements as the Administrative Agent determines are necessary or advisable to perfect such security interest without the signature of the Borrower, provided however, notwithstanding any other provision of any Transaction Document, the Administrative Agent shall have no duty or obligation to file such financing statements, continuation statements or amendments thereto; and provided, further, that if the Administrative Agent notifies the Borrower in writing that it intends to file any financing statements, continuation statements or amendments thereto but fails to do so, and does not in connection therewith timely instruct the Borrower to file such item or items, then the Borrower shall not be and shall not be deemed to be in breach of any representation or warranty concerning the perfection of related or affected security interests if such breach is a direct result of the Administrative Agent’s failure to file such item or items and such filing would have perfected such security interests. The Borrower hereby appoints the Administrative Agent as the Borrower’s irrevocable attorney-in-fact, with full power and authority to take any other action to sign or endorse the Borrower’s name on any Collateral, and to enforce or collect any of the Collateral following acceleration of the obligations of the Borrower under this Loan Agreement in relation to an uncured Event of Default. The Borrower hereby acknowledges that the foregoing appointments of the Administrative Agent as the Borrower’s irrevocable attorney-in-fact have been coupled with an interest. The Borrower hereby ratifies and approves all acts of such attorney undertaken or performed consistent with the foregoing and all Applicable Law, and agrees that the Administrative Agent will not be liable for any act or omission with respect thereto, except to the extent that such act or omission constitutes gross negligence, fraud or willful misconduct on the part of the Administrative Agent. Subject to the provisions of the UCC and the rights of any purchaser (including any Lender) of the Collateral in connection with the Lenders’ exercise of remedies, none of the foregoing provisions and undertakings constitute or shall be deemed to constitute waiver by the Borrower of its rights, title and interest in or to any such Collateral or the proceeds thereof that are in excess of its payment obligations hereunder and all of under the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoingLender Notes.
(bc) Notwithstanding anything Upon the receipt by the Lenders of the Net Proceeds after the sale of a Pledged Policy, in each case, pursuant to the contrary in this Agreement or any other Senior Secured Note DocumentSection 2.7, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part security interest of the Collateral securing the Note Obligations Administrative Agent in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Pledged Policy for the benefit of the Loan Secured Parties in accordance with shall be released and the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 Administrative Agent agrees to file, promptly upon request, such releases or Rule 3-16 of Regulation S-X under the Securities Act is amendedassignments, modified or interpreted by the SEC to permit (or is replaced with another rule or regulationas applicable, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to such Pledged Policy, request the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued Securities Intermediary to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information deliver to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request Borrower the Change Forms delivered to it in blank by the Borrower pursuant to Section 2.6(b) related to such Pledged Policy, and at to take such other actions as the Borrower shall reasonably request in order to evidence any such release of such Pledged Policy. Upon the repayment of all of the Borrower’s expenseAdvances then outstanding and all other Obligations (including, without limitation, the Aggregate Contingent Interest) and termination of all Commitments and this Loan Agreement, the security interest of the Administrative Agent in the Collateral for the benefit of the Secured Parties shall be released and the Administrative Agent agrees to file, promptly furnish copies of upon request, such filings releases or assignments, as applicable, request the Securities Intermediary to deliver to the Borrower.
(d) The Collateral Agent is further authorized Borrower all Change Forms delivered to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request it in blank by the Borrower pursuant to Section 2.6(b), and at to take such other actions as the Borrower’s expense, Borrower shall reasonably request in order to promptly furnish copies of evidence any such filings to the Borrowerrelease.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Loan and Security Agreement (Emergent Capital, Inc.), Loan and Security Agreement (Imperial Holdings, Inc.)
Security Interest. (a) As security for For value received the payment or performance, as the case may be, in full when due undersigned (whether at stated maturity, by acceleration or otherwise"Debtor") of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured PartiesROYAL BANK OF CANADA ("RBC"), a security interest (the "Security Interest") in the undertaking of Debtor and in all rightof Debtor's present and after acquired personal property including, title without limitation, in all Goods (including all parts, accessories, attachments, special tools, additions and accessions thereto), Chattel Paper, Documents of Title (whether negotiable or interest not), Instruments, Intangibles, Money and Securities now owned or hereafter owned or acquired by or on behalf of Debtor including such as may be returned to or repossessed by Debtor) and in or to any all proceeds and renewals thereof, accretions thereto and substitutions therefore (hereinafter collectively called "Collateral"), and including, without limitation, all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter owned or acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):on behalf of Debtor:
(i) all Accounts;inventory of whatever kind and wherever situate:
(ii) the Cash Collateral Account all equipment (as defined in the Revolving Credit Agreementother than inventory) of whatever kind and whatever situate, including, without limitation, all cashmachinery, securitiestools, Instruments apparatus, plant, furniture, fixtures and other property deposited vehicles of whatsoever nature or required to be deposited thereinkind;
(iii) all Chattel PaperAccounts and book debts and generally all debts, dues, claims, choses in action and demands of every nature and kind howsoever arising or secured including letters of credit and advices of credit, which are now due, owing or accruing or growing due to or owned by or which may hereafter become due, owing or accruing or growing due to or owned by Debtor ("Debts");
(iv) all Documentsdeeds documents, writings, papers, books of account and other books relating to or being records of Debts, Chattel Paper or Documents of Title or by which such are or may hereafter be secured, evidenced, acknowledged or made payable;
(v) all Equipmentcontractual rights and insurance claims;
(vi) all General Intangibles;patents, industrial designs, trade-marks, trade secrets and know-how including without limitation environmental technology and biotechnology, confidential information, trade-names, goodwill, copyrights, personality rights, plant breeders' rights, integrated circuit topographies software and all other forms of intellectual and industrial property, and any registrations and applications for registration of any of the foregoing (collectively "Intellectual Property"); an
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory property described in Schedule "C" or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase any schedule now or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoinghereafter annexed hereto.
(b) Notwithstanding anything The Security Interest granted hereby shall not extend or apply to and Collateral shall not include the contrary in this Agreement or any other Senior Secured Note Document, last day of the Equity Interests and other securities term of any direct lease or indirect subsidiary agreement therefor but upon the enforcement of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other lawSecurity Interest, rule or regulation) requiring separate financial statements Debtor shall stand possessed of such subsidiary last day in trust to be filed with assign the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject same to any person acquiring such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsterm.
(c) Each Grantor hereby authorizes The terms "Goods", "Chattel Paper", "Document of Title", "Instrument", "Intangible", "Security", "proceed", "inventory", "accession", "Money", "Account", "financing statement" and "financing change statement" whenever used herein shall be interpreted pursuant to their respective meanings when used in The Personal Property Security Act of the Collateral Agent at any time and province referred to in Clause 14(r), as amended from time to time time, which Act, including amendments thereto and any Act substituted therefor and amendments thereto is herein referred to file as the "P.P.S.A.". Provided always that the term "Goods" when used herein shall not include "consumer goods" of Debtor as that term is defined in any relevant jurisdiction any financing statements (including fixture filings) with respect the P.P.S.A., and the term "Inventory" when used herein shall include livestock and the young thereof after conception and crops that become such within one year of execution of this Security Agreement. Any reference herein to "Collateral" shall, unless the Collateral context otherwise requires, be deemed a reference to "Collateral" or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrowerthereof.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Demand Loan Financing Agreement, Demand Loan Financing Agreement (Ideal Accents Inc)
Security Interest. (a) 3.1 As security for the prompt, complete and indefeasible payment or performance, as the case may be, in full when due (whether at stated maturityon the payment dates, by acceleration or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Lender a security interest in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and Borrower's personal property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in acquired, including the future may acquire any rightfollowing (collectively, title or interest the "Collateral"): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles; (e) Inventory; (f) Investment Property (but excluding thirty-five percent (35%) of the capital stock of any Excluded Collateral, collectively, the “Collateral”):
foreign Subsidiary that constitutes a Permitted Investment if to include such capital stock as Collateral would cause Borrower adverse tax consequences under Internal Revenue Section 956 or any successor statute); (g) Deposit Accounts; (h) Cash; (i) all Accounts;
Goods; (iij) the Cash Collateral Account Intellectual Property (other than Intellectual Property designated as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments“Excluded Intellectual Property” on Exhibit D), including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities AccountsGeneral Intangibles that consist of rights to payment and proceeds from the sale, including licensing or disposition of all cashor any part, marketable securitiesor rights in, securities entitlements, financial assets the Intellectual Property (“Rights to Payment”); (k) other tangible and other funds held in or on deposit in any of the foregoing;
(xviii) all other intangible personal property whatsoever of such GrantorBorrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located; and
, (xixl) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing.
; provided however that the security interest shall not extend to any property that is subject to a Permitted Lien described in clause (bvii) Notwithstanding anything to of the contrary in this Agreement or any other Senior Secured Note Documentdefinition of "Permitted Lien", the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that the inclusion of such Equity Interests and other securities can secure property in the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 Collateral hereunder would violate or Rule 3-16 of Regulation S-X require any consent under the Securities Act (agreements governing such Permitted Liens or associated Indebtedness; provided further however, that the security interest shall not extend to any Accounts and General Intangibles that prohibit assignment unless the prohibition against assignment would be rendered ineffective with respect to the creation of the security interest hereunder pursuant to Sections 9-406 or 9-408 of the UCC or any successor provision or provisions of any relevant jurisdiction or any other applicable law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with including the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulationBankruptcy Code, or any other lawprinciples of equity. Notwithstanding the foregoing, rule or regulation if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Excluded Intellectual Property is adopted, which would require) necessary to have a security interest in the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due Rights to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guaranteesPayment, then the Equity Interests Collateral shall automatically, and other securities of such subsidiary shall automatically be deemed not to be part effective as of the Collateral securing date of this Agreement, include the Note Obligations in favor of the Note Secured Parties (but only Excluded Intellectual Property to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent permit perfection of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority Lender’s security interests interest in the shares of Equity Interests and other securities that are so deemed Rights to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsPayment.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Loan and Security Agreement, Loan and Security Agreement
Security Interest. (a) 3.1 As security for the prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of Borrower’s right, title or title, and interest in or in, to any and under all of Borrower’s personal property and other assets including without limitation the following assets and properties in each case (except as set forth herein) whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles (other than Intellectual Property); (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) Goods; and all Accounts;
(ii) the Cash Collateral Account (as defined other tangible and intangible personal property of Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located, and any of Borrower’s property in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited possession or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents under the control of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorAgent; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing; provided, however, that the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the Intellectual Property (the “Rights to Payment”). Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically, and effective as of the date of this Agreement, include the Intellectual Property to the extent necessary to permit perfection of Agent’s security interest in the Rights to Payment.
3.2 Notwithstanding the broad grant of the security interest set forth in Section 3.1, above, the Collateral shall not include (ba) Notwithstanding anything any property, right or asset held by Borrower to the contrary extent that a grant of a security interest therein is prohibited by any Requirement of Law of a Governmental Authority or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property, right or asset, except (A) to the extent that the terms in such contract, license, instrument or other document providing for such prohibition, breach, default or termination, or requiring such consent are not permitted under this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only (B) to the extent that such Equity Interests and Requirement of Law or the term in such contract, license, agreement, instrument or other securities can secure document providing for such prohibition, breach, default or termination or requiring such consent is ineffective under Section 9406, 9407, 9408 or 9409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act UCC (or any other law, rule successor provision or regulationprovisions) requiring separate financial statements of such subsidiary to be filed with the SEC (any relevant jurisdiction or any other governmental agencyapplicable law (including the Bankruptcy Code of the United States). In the event ; provided, however, that Rule 3-10 such security interest shall attach immediately at such time as such Requirement of Law is not effective or Rule 3-16 of Regulation S-X under the Securities Act requires applicable, or such prohibition, breach, default or termination is no longer applicable or is amendedwaived, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due and to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guaranteesextent severable, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not attach immediately to be part any portion of the Collateral securing the Note Obligations that does not result in favor of the Note Secured Parties such consequences, (but only to the extent necessary to not be subject to such requirementb) (any such Equity Interests or other securitiesExcluded Accounts, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at assets of any time non-wholly owned Subsidiaries pursuant to customary restrictions and from time conditions contained in agreements governing joint ventures or strategic alliances in the ordinary course of business, provided that Borrower has exercised its good faith best efforts to time not agree to file such contractual limitations, (d) interests in any relevant jurisdiction any financing statements joint ventures that constitute Permitted Investments pursuant to customary restrictions and conditions contained in agreements governing such joint ventures in the ordinary course of business, provided that Borrower has exercised its good faith best efforts to not agree to such contractual limitations, or (including fixture filingse) with respect to shares or stock in Excluded Subsidiaries, more than 65% to the Collateral or any part thereof and amendments thereto extent that (i) indicate the Collateral as “all assets” pledge of more than 65% of such Grantor shares or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing stock of any financing statement or amendment, including (x) whether such Grantor is Excluded Subsidiary would result in an organization, the type of organization and any organizational identification number issued adverse tax consequence to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent 3.3 [Reserved].
3.4 If this Agreement is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfectingterminated, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and Agent’s Lien in the Collateral Agent as secured partyshall continue until the Secured Obligations (other than inchoate indemnity obligations) are repaid in full in cash. The Collateral Agent agrees, upon request by Upon payment in full in cash of the Borrower Secured Obligations (other than inchoate indemnity obligations) and at such time as the Lenders’ obligation to make credit extensions has terminated, Agent shall, at the sole cost and expense of Borrower’s expense, release its Liens in the Collateral and all rights therein shall revert to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Loan and Security Agreement (Geron Corp), Loan and Security Agreement (Geron Corp)
Security Interest. (a) 3.1 As security for the prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of Borrower’s right, title or title, and interest in or in, to any and under all of Borrower’s personal property and other assets including without limitation the following assets and properties in each case (except as set forth herein) whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles (other than Intellectual Property); (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) Goods; and all Accounts;
(ii) the Cash Collateral Account (as defined other tangible and intangible personal property of Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located, and any of Borrower’s property in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited possession or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents under the control of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorAgent; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing; provided, however, that the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the Intellectual Property (the “Rights to Payment”).
(b) 3.2 Notwithstanding anything to the contrary broad grant of the security interest set forth in this Agreement or any other Senior Secured Note DocumentSection 3.1, above, the Equity Interests and other securities of any direct Collateral shall not include: (a) non-assignable licenses or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adoptedcontracts, which would require) by their terms require the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part consent of the Collateral securing the Note Obligations in favor of the Note Secured Parties licensor thereof or another party (but only to the extent necessary to not be subject to such requirementprohibition on transfer is enforceable under applicable law, including, without limitation, Sections 9406, 9407 and 9408 of the UCC), (b) any Excluded Account, (c) any such Equity Interests interest of Borrower as a lessee under an Equipment lease or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, capital assets constituting purchase money Liens to the extent necessary permitted pursuant to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part clause (vii) of the Collateral securing the Note Obligations in favor definition of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with Permitted Liens if Borrower is prohibited by the terms of such lease from granting a security interest in such lease or under which such an assignment or Lien would cause a default to occur under such lease; provided, however, that upon termination or cessation of such prohibition, such interest shall immediately become Collateral without any action by Borrower, Agent or Lenders, (d) any Intellectual Property and (e) any particular asset if the Credit Agreement and this Agreement. In pledge thereof or the event that Rule 3-10 security interest therein is prohibited or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted restricted by the SEC to permit (or is replaced with another rule or regulation, or any other applicable law, rule or regulation is adopted(including any requirement to obtain the consent of any governmental authority, which would permitregulatory authority or third party), provided that the foregoing exclusion of this clause (e) such subsidiary’s Equity Interests and other securities shall in no way be construed (1) to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only apply to the extent necessary to not be subject to that any such financial statement requirement). In such eventdescribed prohibition or restriction is unenforceable under Section 9-406, the Security Documents may be amended 9-407, 9-408, or modified, without the consent 9-409 of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder UCC or any holder of Other Pari Passu Lien Obligations, other applicable law or (2) to apply to the extent necessary to subject to that any consent or waiver has been obtained, or is hereafter obtained, that would permit the Liens under Agent’s security interest or Lien notwithstanding the Security Documents prohibition or restriction on the pledge of such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsasset.
3.3 At such time as the Secured Obligations (cother than inchoate indemnity obligations) Each Grantor hereby authorizes are paid in full in cash, Agent’s Lien on the Collateral shall be released and all rights therein shall revert to Borrower, and, at Borrower’s sole cost and expense, Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide execute such information documents and take such other steps as are reasonably necessary for Borrower to accomplish the Collateral Agent promptly upon written request. The Collateral Agent agreesforegoing, upon request by the Borrower and all at the Borrower’s sole cost and expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Loan and Security Agreement, Loan and Security Agreement (Constellation Pharmaceuticals Inc)
Security Interest. (a) As security for For value received, to secure the payment or performance, as of up to Five Hundred Thousand and no/100 Dollars ($500,000.00) and the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) performance of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral obligations under this Agreement, for the ratable benefit of the Loan Secured PartiesPromissory Note, and as security for the payment or performanceany other loan documents executed contemporaneously with this Agreement, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Party a security interest in all rightthe following: General Intangibles consisting of Intellectual Property, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
specifically including (i) all Accounts;
the issued U.S. Patents set forth in Exhibit A; (ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) any patent or patent application claiming priority thereto, including but not limited to, non-provisional patents, reexaminations, reissues, continuations, continuations-in-part, divisions, renewals, and all cashextensions, securities, Instruments and other property deposited or required to be deposited therein;
any foreign counterparts thereto; (iii) all Chattel Paper;
goodwill of the business connected with the use of, and symbolized by, each Patent and (iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instrumentsincome, including all Pledged Securities;
(ix) all Inventory royalties, proceeds and liabilities at any time due or documents of title, customs receipts, insurance certificates, shipping documents payable or asserted under and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
, including, without limitation, all rights to sue and recover at law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof (b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Documentcollectively, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency“Patent Collateral”) of separate financial statements of any subsidiary of Holdings due to Grantor whether now owned or existing or hereafter acquired or arising, whether now existing or hereafter arising, and wherever located (the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent The obligations secured include any payment of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests attorneys’ fees and other securities that are so deemed expenses incurred by Secured Party to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, enforce or collect any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and obligation secured by this Agreement. In addition to the event that Rule 3-10 security interest granted above, Collateral includes all the following, whether now owned or Rule 3-16 existing or hereafter acquired or arising, whether now existing or hereafter arising, and wherever located:
a. All products and proceeds of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the property described in this Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationssection.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effectb. All accounts, contract rights, rents, monies, payments, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any all other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or rights arising out of a sale, lease, or other disposition of the Collateral. Nothing contained .
c. All records and data relating to the Collateral, together with all of Grantor’s right, title, and interest in this Agreement shall be construed and to make the Collateral Agent all computer software required to utilize, create, maintain, and process any such records or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Persondata on electronic media.
Appears in 2 contracts
Sources: Security Agreement (Bion Environmental Technologies Inc), Security Agreement (Bion Environmental Technologies Inc)
Security Interest. (a) As security for To secure the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) and performance of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) all of the Obligations (other than contingent obligations)when due, each Grantor Borrower hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Silicon a security interest in all right, title or of Borrower’s interest in or to any and all of the following assets and properties in each case following, whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor acquired, and wherever located: All Inventory, Equipment, Receivables, and General Intangibles, including, without limitation, all of Borrower’s Deposit Accounts, and all money, and all property now has or at any time in the future may acquire any rightin Silicon’s possession (including claims and credit balances), title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
proceeds (iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import proceeds of any Inventory;
(x) insurance policies, proceeds of proceeds and claims against third parties), all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records products and all books and records pertaining related to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing (all of the foregoing;
(xviii) , together with all other personal property whatsoever in which Silicon may now or in the future be granted a lien or security interest, is referred to herein, collectively, as the “Collateral”). Notwithstanding the foregoing, provided that (a) no Default or Event of such Grantor; and
Default has occurred and is continuing, (xixb) Borrower completes an initial public offering of equity securities of Borrower that generates net proceeds of at least $535,000,000 (the “IPO”), (c) immediately following the conclusion of the IPO Borrower has minimum cash (or cash equivalents acceptable to Silicon) liquidity maintained at Silicon of not less than $5,000,000 and (d) Borrower executes and delivers to Silicon, on Silicon’s standard form, a Negative Pledge Agreement regarding the Borrower’s Intellectual Property, Silicon agrees to release its liens on and security interests in all of Borrower’s Intellectual Property. Also notwithstanding the foregoing, the term “Collateral” does not include any license agreements or contract rights (under which Borrower is the licensee, lessee or other similarly situated party) to the extent not otherwise included(i) the granting of a security interest in it would be contrary to applicable law, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
or (bii) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted rights are nonassignable by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties their terms (but only to the extent necessary to not be subject to such requirementprohibition is enforceable under applicable law, including, without limitation, Section 9318(4) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, of the Security Documents may be amended or modified, California Uniform Commercial Code) without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder licensor or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties party (but only to the extent necessary to such consent has not be subject to any such financial statement requirementbeen obtained). In such event; nevertheless, the Security Documents may be amended or modifiedforegoing grant of security interest shall extend to, without and the consent of the Note Trustee, the Collateral Agentterm “Collateral” shall include, any Senior Secured Note Holder and all proceeds of such license agreements or any holder of Other Pari Passu Lien Obligations, contract rights to the extent necessary to subject to that the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral assignment or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” encumbering of such Grantor or words of similar effectproceeds is not so restricted (including, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organizationwithout limitation, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies proceeds of such filings to the Borrowerlicense agreements or contract rights for which any required consent has been obtained).
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Loan and Security Agreement (Digirad Corp), Loan and Security Agreement (Digirad Corp)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)its Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter of Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii1) Securities Accounts, (2) Financial Assets credited to Securities Accounts or Deposit Accounts from time to time and all Security Entitlements in respect thereof, (3) all Pledged Collateralcash held any Securities Account or Deposit Account and (4) all other money in the possession of the Collateral Agent;
(xiii) all Records and timber to be cut;
(xiv) all other personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoing clauses);
(xv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle covered by a certificate of title or ownership, whether now owned or hereafter acquired, (b) any other Senior Secured Note DocumentEquity Interests in any Subsidiary of either Issuer, (c) (i) the Bucksport Co-Gen Assets, (ii) the Excluded Minority Interests, (iii) any Equity Interests acquired after the Closing Date in a Person that is not a Subsidiary if, and to the extent that, and for so long as, a grant of a security interest in such Equity Interests would violate applicable law or an enforceable contractual obligation binding on or relating to such Equity Interests (if such obligation existed at the time of acquisition of such Equity Interests and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Equity Interests), and (iv) any assets acquired after the Closing Date, to the extent that, and for so long as, granting a security interest in such assets would violate an enforceable contractual obligation binding on such assets that existed at the time of acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness pursuant to Section 4.03(b)(iv) of the Indenture that is secured by a Permitted Lien), (d) any property excluded from the definition of Pledged Collateral by virtue of the proviso to Section 3.01 hereof, (e) any Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose or (f) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any license, contract or agreement to which such Pledgor is a party (other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulation) requiring separate financial statements principles of such subsidiary to be filed with equity); provided, that immediately upon the SEC (ineffectiveness, lapse or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements termination of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeprovision, the Collateral Agentshall include, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests Pledgor shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be have granted a part of the Collateral securing the Note Obligations security interest in, all such rights and interests as if such provision had never been in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationseffect.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filingsfilings and filings with respect to timber to be cut) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The , including providing within 30 days of any reasonable request therefor legal descriptions of real property (other than real property subject to a mortgage in favor of the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, Agent) on which timber to promptly furnish copies be cut of such filings to the Borrower.
(d) Pledgor is located. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Pledgor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerPledgor constituting Patents, Trademarks or Copyrights.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Collateral Agreement, Collateral Agreement (Verso Paper Corp.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the "Security Interest") in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “"Article 9 Collateral”"):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xix) all Intellectual PropertyLetter-of-credit rights;
(xiixi) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted to the Collateral Agent, including describing such property as "all assets" or "all property". Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) date hereof. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Dennys Corp), Guarantee and Collateral Agreement (Dennys Corp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Guaranteed Obligations, each Grantor Guarantor hereby confirms the pledge assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Guarantor or in which such Grantor Guarantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash, Deposit Accounts and securities accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual PropertyLetter-of-Credit Rights;
(xii) all Pledged CollateralCommercial Tort Claims;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiv) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for supporting obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest (other than the grant of security interest in the Pledged Stock pursuant to Section 3.01) in, and “Article 9 Collateral” shall not include, (a) any Equity Interests of any Person (except for Equity Interests of any Material Subsidiary listed on Schedule VI hereto as such schedule may be updated from time to time, that can be perfected upon the filing of a financing statement), (b) any Material Pledged Debt Securities or any other Senior Secured Note Document, the Equity Interests and other debt securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, pledged pursuant to any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with foreign pledge agreement under the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 , (c) any assets of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only Subsidiary to the extent necessary to not be subject to any such financial statement requirement). In such eventthat, the Security Documents may be amended or modified, without the consent as of the Note TrusteeClosing Date, and for so long as, a pledge of such assets would violate a contractual obligation binding on such assets or such Subsidiary, (d) any assets of any Subsidiary acquired after the Collateral AgentClosing Date in accordance with the Credit Agreement if, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, and to the extent necessary to subject that, and for so long as (1) pledging such assets would violate applicable law or a contractual obligation binding on such assets or such Subsidiary and (2) such law or obligation existed at the time of the acquisition thereof or (e) any United States intent-to-use trademark applications to the Liens 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 trademark applications under applicable federal law; provided, that, upon the Security Documents such additional Equity Interests reasonable request of the Administrative Agent, Company shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses (c) and (d) above, other securities. This Section 3.01(b) shall apply mutatis mutandis than those set forth in a joint venture agreement to Other Pari Passu Lien Obligationswhich the Company or any Subsidiary is a party.
(cb) Each Grantor Guarantor hereby irrevocably authorizes the Collateral Administrative Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) ), continuation statements, or other filings and recordings, with respect to the Article 9 Collateral and any other collateral pledged hereunder or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, or such other information as may be required under applicable law including (xi) whether such Grantor Guarantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Guarantor, (yii) in the case of a financing statement filed as a fixture filingFixtures, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Administrative Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral or other collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Guarantor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorGuarantor, without the signature of any GrantorGuarantor, and naming any Grantor Guarantor or the Grantors Guarantors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Guarantor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Chart Industries Inc), Guarantee and Collateral Agreement (Chart Industries Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including the Guaranty, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, Agent for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all of such Grantor’s right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Goods;
(vii) all Instruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xix) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xivxi) all letters of credit under which such Grantor is the beneficiary and Letter of Credit RightsFixtures;
(xvxii) all Letter-of-Credit Rights but only to the extent constituting a Supporting ObligationsObligation for other Collateral as to which perfection of a security interest in such Collateral is accomplished by the filing of a UCC financing statement;
(xvixiii) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorIntellectual Property; and
(xixxiv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in any other Senior Secured Note DocumentExcluded Assets and the term “Article 9 Collateral” shall not include any Excluded Assets.
(b) Subject to Section 3.01(e), the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” or “all personal property” of such Grantor or words of similar effect, effect or as being of an equal or lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement .
(d) The Collateral Agent is authorized to file with the USPTO or the USCO (or any successor office) such documents executed by each Grantor which shall be construed to make executed by each Grantor upon reasonable request of the Collateral Agent as may be necessary or advisable for the purpose of creating, attaching and perfecting the Security Interest in United States Intellectual Property of each Grantor in which a security interest has been granted by each Grantor and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. No Grantor shall be required to complete any filings governed by non-United States laws or take any other action with respect to the perfection of the Security Interests created hereby in any Intellectual Property subsisting in any non-United States jurisdiction.
(e) Notwithstanding anything to the contrary in the Loan Documents, none of the Grantors shall be required, nor is the Collateral Agent authorized, (i) to perfect the Security Interests granted by this Agreement (including Security Interests in Investment Property and Fixtures) by any means other than by (A) filings pursuant to the UCC in the office of the secretary of state (or similar central filing office) of the relevant State(s), (B) filings with the USPTO or the USCO, as applicable, with respect to Intellectual Property of the Grantors as expressly required elsewhere herein, (C) delivery to the Collateral Agent to be held in its possession of all Collateral consisting of Instruments and certificated Pledged Equity as expressly required elsewhere herein or (D) other methods expressly provided herein, (ii) to enter into any deposit account control agreement, securities account control agreement or any other Secured Party liable as a member of control agreement with respect to any limited liability company deposit account, securities account or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party Collateral that requires perfection by virtue of “control” except as otherwise set forth in this Section 3.01(e), (iii) to take any action pursuant to this Agreement (other than the actions listed in clauses (i)(A) and (C) above) with respect to any assets located outside of the United States, (iv) to perfect in any assets subject to a certificate of title statute or otherwise (v) to deliver any Equity Interests pursuant to this Agreement except as referred to expressly provided in the following sentence) shall have any of the dutiesSection 2.01, obligations Section 2.02 or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonSection 2.04.
Appears in 2 contracts
Sources: Security Agreement, Security Agreement (Tradeweb Markets Inc.)
Security Interest. (a) 3.1 As security for the prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of Borrower’s right, title or title, and interest in or in, to any and under all of Borrower’s personal property and other assets including without limitation the following assets and properties in each case (except as set forth herein) whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles; (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) all Accounts;
Goods; (iij) the Cash Collateral Account (as defined Antecip License Agreement and all proceeds thereof; and all other tangible and intangible personal property of Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located, and any of Borrower’s property in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited possession or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents under the control of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorAgent; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing.
(b) 3.2 Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part broad grant of the Collateral securing the Note Obligations security interest set forth in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securitiesSection 3.1, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeabove, the Collateral Agentshall not include (collectively, the “Excluded Property”) (a) any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, “intent to use” trademarks at all times prior to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubtfirst use thereof, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted whether by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees actual use thereof in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such eventcommerce, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case recording of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file use with the United States Patent and Trademark Office or otherwise, provided, that upon submission and acceptance by the United States Copyright Patent and Trademark Office of an amendment to allege use of an intent-to-use trademark application pursuant to 15 U.S.C. Section 1060(a) (or any successor officeprovision) such documents as may be necessary for intent-to-use application shall constitute Collateral, (b) non-assignable property, licenses or contracts, which by their terms require the purpose consent of perfectingthe licensor thereof or another party (but only to the extent such prohibition on transfer is enforceable under applicable law, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantorincluding, without limitation, Sections 9406, 9407 and 9408 of the signature of UCC), (c) any Grantor, and naming any Grantor particular asset if the pledge thereof or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest security interest therein is granted as security only and, except as otherwise required prohibited or restricted by applicable law, rule or regulation (including any requirement to obtain the consent of any governmental authority, regulatory authority or third party), provided that the foregoing exclusion of this clause (c) shall not in no way be construed (1) to apply to the extent that any described prohibition or restriction is unenforceable under Section 9406, 9407 or 9408 of the UCC or other applicable law or (2) to apply to the extent that any consent or waiver has been obtained, or is hereafter obtained, that would permit the Agent’s security interest or Lien notwithstanding the prohibition or restriction on the pledge of such asset, (d) any Excluded Accounts, including cash pledged pursuant to Permitted Liens and any Deposit Account, securities account, commodities account or other account to the extent solely and exclusively used to hold any cash pledged as a Permitted Lien, and (e) Equipment and software (and the products and proceeds thereof) subject to Permitted Liens of the type described in clause (vii) of the definition of Permitted Liens, but only to the extent and for so long as the agreements under which the equipment is financed prohibit granting a security interest therein to Lender.
3.3 Upon termination of this Agreement and repayment if full of all Secured Obligations (other than any inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of this Agreement), all security interest in the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in granted under this Agreement shall be construed to make terminate and all rights on the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred shall revert to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnershipBorrower. The parties hereto expressly agree that, unless the Collateral Agent shall become execute such documents and take such other steps as are reasonably necessary for Borrower to accomplish the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant heretoforegoing, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Personall at Borrower’s sole cost and expense.
Appears in 2 contracts
Sources: Loan and Security Agreement (Axsome Therapeutics, Inc.), Loan and Security Agreement (Axsome Therapeutics, Inc.)
Security Interest. (a) As security for the performance by the Borrower of all the terms, covenants and agreements on the part of the Borrower to be performed under this Agreement or any other Transaction Document, including the punctual payment or performance, as the case may be, in full when due (whether at stated maturityof all Borrower Obligations, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor Borrower hereby confirms the pledge and grant grants to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in in, all of the Borrower's right, title or and interest in or and to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “"Collateral”"):
(a) all Receivables, whether now owned and existing or hereafter acquired or arising, together with all Related Security and Collections with respect thereto;
(b) all loans made to the European Purchaser under the European Loan Agreement;
(c) the Originator Purchase Agreements, the European Loan Agreement, the Transfer Agreement, the European Purchaser Guaranty, the European Purchaser Security Agreement, the Servicing Agreement, the Performance Guaranty, the Credit Default Swaps and the Control Agreements (collectively, the "Collateral Agreements"), including, without limitation, (i) all Accountsrights of the Borrower to receive moneys due or to become due under or pursuant to the Collateral Agreements, (ii) all security interests and property subject thereto from time to time purporting to secure payment of monies due or to become due under or pursuant to the Collateral Agreements, (iii) all rights of the Borrower to receive proceeds of any insurance, indemnity, warranty or guaranty with respect to the Collateral Agreements, (iv) all claims of the Borrower for damages arising out of or for breach of or default under the Collateral Agreements, and (v) the right to compel performance and otherwise exercise all remedies and enforce all rights under the Collateral Agreements;
(iid) the Cash Collection Accounts, the Concentration Accounts, any Credit Default Collateral Account Accounts (as defined in the Revolving Transfer Agreement), the Credit AgreementDefault Premium Reserve Account and the Collateral Accounts, including, without limitation, (i) all funds and other evidences of payment held therein and all cashcertificates and instruments, securitiesif any, Instruments from time to time representing or evidencing any of such accounts or any funds and other evidences of payment held therein, (ii) all investment property deposited and other financial assets held in, or required acquired with funds from, such accounts and all certificates and instruments from time to be deposited therein;
time representing or evidencing such investment property and financial assets, (iii) all Chattel Paper;
notes, certificates of deposit and other instruments from time to time hereafter delivered in substitution for any of the then existing accounts and (iv) all Documentsinterest, dividends, cash, instruments, financial assets, investment property and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any and all of such accounts;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviiie) all other personal property whatsoever assets of such Grantorthe Borrower, whether now owned and existing or hereafter acquired or arising, including, without limitation, all accounts, chattel paper, goods, equipment, inventory, instruments, investment property, deposit accounts and general intangibles (as those terms are defined in the UCC as in effect on the date hereof in the State of New York) in which the Borrower has any interest; and
(xixf) to the extent not otherwise includedincluded in the foregoing, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Receivables Loan Agreement (TRW Automotive Inc), Receivables Loan Agreement (TRW Automotive Inc)
Security Interest. (a) As security for the To secure payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Borrower hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Party a continuing security interest in and to all rightof Borrower’s rights, title or and interest in or and to any and all of the following its property of any kind or description, tangible and intangible personal property, assets and properties in each case whether tangible or intangiblerights, wherever located, and whether now existing or owned or at any time hereafter arising or acquired by such Grantor or in which such Grantor now has or at any time in and the future may acquire any rightproceeds and products therefrom, title or interest including, without limitation, the following (but excluding any Excluded Collateral, collectively, the “Collateral”):
(ia) All Accounts, including, without limitation, accounts receivable, insurance receivables and prepaid premiums, if any, and all AccountsGoods whose sale, lease or other disposition has given rise to Accounts and have been returned to, or repossessed or stopped in transit by, Borrower, or rejected or refused by an Account Debtor;
(iib) the Cash Collateral Account (as defined in the Revolving All Chattel Paper, including, without limitation, Electronic Chattel Paper and liens and lien rights on customer property; Documents; Instruments, including, without limitation, Promissory Notes; Letter of Credit Agreement) Rights and all cashproceeds of letters of credit; Supporting Obligations; Liabilities secured by real estate; Commercial Tort Claims and General Intangibles, securitiesincluding, Instruments without limitation, Payment Intangibles and other property deposited or required to be deposited thereinSoftware;
(iiic) all Chattel PaperAll Inventory, including, without limitation, raw materials, work in process, materials and finished goods leased by Borrower as lessor or held for sale or lease or furnished or to be furnished under contracts of service or used or consumed in a business;
(ivd) all Documents;
(v) All Goods and all Equipment;
(vie) all General IntangiblesAll Securities, Investment Property and Deposit Accounts;
(viif) all Goodspatents, patent applications and inventions and all issued patents in the United States of America or elsewhere and any future patents, including any reissue, continuation, division or other extension in whole or part of any such patent;
(viiig) all InstrumentsAll products of, including all Pledged Securitiesadditions and accessions to, and substitutions, betterments and replacements for the foregoing property;
(ixh) all Inventory All sums at any time credited by or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related due from Secured Party to the purchase or import of any InventoryBorrower;
(xi) all Investment Property;
All property in which Borrower has an interest now or at any time hereafter coming into the possession or under the control of Secured Party or in transit by mail or carrier to or from Secured Party or in possession of or under the control of any third party acting on Secured Party’s behalf without regard to whether Secured Party received the same in pledge, for safekeeping, as agent for collection or transmission or otherwise or whether Secured Party has conditionally released the same (xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accountsexcluding, including all cashnevertheless, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal foregoing property whatsoever of such GrantorBorrower which now or any time hereafter is in possession or control of Secured Party under any written trust agreement wherein Secured Party is trustee and Borrower is trustor); and
(xixj) to the extent not otherwise included, all All Proceeds (whether Cash Proceeds or Noncash Proceeds, all accessions to and substitutions and replacements for and products of any and all ) of the foregoing and all offspringsproperty, rents profits and products including, without limitation, proceeds of any insurance payable by reason of loss or damage to the foregoing property and all collateral security of eminent domain or condemnation awards. Terms used and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary not otherwise defined in this Agreement or any other Senior Secured Note Document, shall have the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for meaning given such terms in the benefit of Senior Secured Note Holders only to Michigan Uniform Commercial Code (the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency“UCC”). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements meaning of any subsidiary term defined in the UCC is amended after the date of Holdings due to this Agreement, the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities meaning of such subsidiary term as used in this Agreement shall automatically be deemed not to be part that of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that more encompassing of: (i) indicate the Collateral as “all assets” of such Grantor or words of similar effectdefinition contained in the UCC prior to the amendment, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) definition contained in the case of a financing statement filed as a fixture filing, a sufficient description of UCC after the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borroweramendment.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Security Agreement (Health Enhancement Products Inc), Security Agreement (Health Enhancement Products Inc)
Security Interest. (a) As security for the performance by the Issuer of all the terms, covenants and agreements on the part of the Issuer to be performed under this Agreement or any other Transaction Document, including the punctual payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge Aggregate Note Balance and grant to the Collateral Agent, its successors and permitted assigns all Interest in respect of the security interest of Notes and all other Issuer Obligations, the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor Issuer hereby pledges and grants to the Collateral Agent, Administrative Agent for its successors benefit and permitted assigns, for the ratable benefit of the Secured Parties, a continuing security interest in in, all of the Issuer’s right, title or and interest in or in, to any and under all of the following assets and properties in each case following, whether tangible now or intangiblehereafter owned, wherever located, and now owned existing or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest arising (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (i) all Accounts;
Pool Receivables, (ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cashRelated Security with respect to such Pool Receivables, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
Collections with respect to such Pool Receivables, (iv) the Lock-Boxes and Lock-Box Accounts and all Documents;
amounts on deposit therein, and all certificates and instruments, if any, from time to time evidencing such Lock-Boxes and Lock-Box Accounts and amounts on deposit therein, (v) all Equipment;
rights (but none of the obligations) of the Issuer under the Purchase and Sale Agreement and (vi) all General Intangibles;
(vii) all Goods;
(viii) all Instrumentsproceeds of, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) amounts received or receivable under any or all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accountsof, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
. The Administrative Agent (xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties Parties) shall have, with respect to all the Collateral, and in accordance with addition to all the terms other rights and remedies available to the Administrative Agent (for the benefit of the Credit Agreement Secured Parties), all the rights and remedies of a secured party under any applicable UCC. The Issuer hereby authorizes the Administrative Agent to file financing statements describing as the collateral covered thereby as “all of the debtor’s personal property or assets” or words to that effect, notwithstanding that such wording may be broader in scope than the collateral described in this Agreement. In Immediately upon the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess occurrence of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note TrusteeFinal Payout Date, the Collateral shall be automatically released from the lien created hereby, and this Agreement and all obligations (other than those expressly stated to survive such termination) of the Administrative Agent, the Purchasers and the other Credit Parties hereunder shall terminate, all without delivery of any Senior Secured Note Holder instrument or performance of any holder of Other Pari Passu Lien Obligationsact by any party, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect all rights to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information shall revert to the Collateral Agent Issuer; provided, however, that promptly upon following written request. The Collateral Agent agrees, upon request therefor by the Borrower Issuer delivered to the Administrative Agent following any such termination, and at the Borrower’s expensesole expense of the Issuer, to promptly furnish copies of such filings the Administrative Agent shall authorize or execute, as applicable, and deliver to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent Issuer UCC termination statements and Trademark Office or United States Copyright Office (or any successor office) such other documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon Issuer shall reasonably request by the Borrower and at the Borrower’s expense, to promptly furnish copies of evidence such filings to the Borrowertermination.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Note Purchase Agreement (Mallinckrodt PLC), Note Purchase Agreement (Mallinckrodt PLC)
Security Interest. (a) As security for To secure the prompt and complete payment or performanceand performance of the Secured Obligations when due, as the case may be, in full when due (whether at stated maturity, by acceleration required prepayment, declaration, acceleration, demand or otherwiseotherwise (including the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Loan Obligations (Bankruptcy Code or any similar provisions of other than contingent obligationsapplicable Laws), each Grantor hereby confirms the pledge and grant grants to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, Administrative Agent (for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, ) a continuing security interest in all rightin, title or interest in or and Lien upon, and a right of set off against, and hereby pledges, collaterally transfers and assigns to any and all Administrative Agent (for the benefit of the following assets and properties in each case Secured Parties) as security, all personal property of such Grantor, whether tangible or intangible, wherever located, and now owned or hereafter acquired or existing, and wherever located (together with all other collateral security for the Secured Obligations at any time hereafter granted to or held or acquired by such Grantor or in which such Grantor now has or at any time in under the future may acquire any right, title or interest (but excluding any Excluded CollateralControl of Administrative Agent, collectively, the “Collateral”):), including:
(ia) All personal property and fixture property of every kind and nature including, without limitation, all Accounts;
accounts, chattel paper (ii) the Cash Collateral Account whether tangible or electronic), goods (as defined in the Revolving Credit Agreement) including inventory, equipment (and any accessions thereto), software (specifically including, but not limited to, all cashaccounting software), securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of titleinvestment property, customs receiptsdocuments, insurance certificatesDeposit Accounts, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, Commodities Accounts, money, commercial tort claims, letter-of-credit rights, supporting obligations, Tax refunds, and General Intangibles (including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoingpayment intangibles);
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests All promissory notes and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only instruments payable to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, including, without limitation, all inter-company notes from Subsidiaries and naming those set forth on Schedule 3.8 (“Collateral Notes”) and all Liens any Grantor may have, or the Grantors as debtors be entitled to, under all present and future loan agreements, security agreements, pledge agreements, deeds of trust, mortgages, guarantees, or other documents assuring or securing payment of or otherwise evidencing the Collateral Agent as secured party. The Notes, including, without limitation, those set forth on Schedule 3.8 (“Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Note Security”);
Appears in 2 contracts
Sources: Credit Agreement (Suburban Propane Partners Lp), Credit Agreement (Suburban Propane Partners Lp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor Initial Grantor, solely until to the Working Capital Notes Termination, hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral AgreementTrustee, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, Trustee for the ratable benefit of the Secured Parties, a security interest in (the “Article 9 Security Interest” and, together with the Initial Pledge, collectively, the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Initial Grantor or in which such Initial Grantor now has or at any time in the future future, solely until to the Working Capital Notes Termination, may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDeposit Accounts, all Securities Accounts and all Commodities Accounts, including all Controlled Accounts and Pledged Risk Retention Instruments Account, together with all amounts on deposit from time to time thereto;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Propertybooks and records pertaining to the Article 9 Collateral;
(xii) all Pledged CollateralFixtures;
(xiii) all Records and all books and records pertaining Letter-of-Credit Rights, but only to the Collateralextent constituting a Supporting Obligation for other Article 9 Collateral as to which perfection of a security interest in such Article 9 Collateral is accomplished by the filing of a UCC financing statement;
(xiv) all letters of credit under which such Grantor is the beneficiary Intellectual Property and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorLicenses; and
(xixxv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in any other Senior Secured Note Document, Initial Collateral Excluded Assets in the Equity Interests and other securities case of any direct or indirect subsidiary of Holdings Initial Collateral and the term “Article 9 Collateral” shall not include any Initial Collateral Excluded Assets; provided, further, that are owned by (i) if and when any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary assets shall cease to be filed with the SEC an Initial Collateral Excluded Asset, a Lien on and security in such assets shall be automatically deemed granted therein until, if ever, such assets shall again become Initial Collateral Excluded Assets and (or ii) a Lien on and security in such property shall be automatically deemed granted on any other governmental agency). In the event that Rule 3-10 or Rule 3-16 and all Proceeds of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien ObligationsAssets, to the extent necessary such Proceeds do not themselves constitute Initial Collateral Excluded Assets.
(b) Subject to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of Section 3.01(e), each Initial Grantor hereby irrevocably authorizes (but does not obligate) the Collateral securing Trustee, prior to the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubtWorking Capital Notes Termination, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets,” “all personal property” or “All assets of the Grantor whether now existing or hereafter acquired, including all proceeds thereof” of such Initial Grantor or words of similar effect, effect or as being of an equal or lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesInitial Grantor. Each Initial Grantor agrees to make such filings and to provide such information to the Collateral Agent Trustee promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(dc) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Article 9 Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent Trustee or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Initial Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Pledge and Security Agreement (Finance of America Companies Inc.), Pledge and Security Agreement (Finance of America Companies Inc.)
Security Interest. (a) 3.1 As security for the prompt, complete and indefeasible payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Obligor grants to the Collateral Agent, its successors and permitted assignsLender, for the ratable benefit of the Secured Partiesits benefit, a security interest in all of such ▇▇▇▇▇▇▇’s right, title or title, and interest in or and to any and all of the following assets and properties in each case personal property whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor Obligor now has or at any time in the future may acquire any right, title or interest and wherever located and all proceeds and products thereof (but excluding any Excluded Collateral, collectively, the “Collateral”):
): all goods, Accounts (i) including health-care receivables), Equipment, Inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, General Intangibles (except as provided below), Collateral IP, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, securities accounts, securities entitlements and all Accounts;
other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and (ii) all Obligor’s Books relating to the Cash Collateral Account (as defined in the Revolving Credit Agreement) foregoing, and any and all cashclaims, securities, Instruments rights and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit interests in any of the foregoing;
(xviii) above and all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise includedsubstitutions for, all Proceedsadditions, all attachments, accessories, accessions and improvements to and substitutions replacements, products, proceeds and replacements for and products insurance proceeds of any and or all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) 3.2 Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part broad grant of the Collateral securing the Note Obligations security interest set forth in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securitiesSection 3.1, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeabove, the Collateral Agentshall not include (i) any Excluded Intellectual Property, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to (ii) the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part right of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) Borrower with respect to earnouts pursuant to that certain Asset Purchase Agreement entered into by the Collateral Borrower and DSM Nutritional Products Ltd. on March 31, 2021, and the proceeds thereon, (iii) any joint venture agreement, or limited liability company agreement with respect to any limited liability company of which Parent or any part thereof Subsidiary owns less than 100% of the membership interest (a “JV Agreement”) if grant of a security interest would cause a breach of such JV Agreement, and amendments thereto (iv) until repayment or prepayment of DSM Tranche 3, all equity interests held by the Borrower in Amyris RealSweet, LLC provided that (i) no Obligor or any of their respective Subsidiaries shall create or permit to subsist any Lien over any Excluded Intellectual Property or JV Agreement or, after repayment or prepayment of DSM Tranche 3, any equity interests held by the Borrower in Amyris RealSweet, LLC.
3.3 Parent shall, as security for the Secured Obligations, cause each Subsidiary Guarantor to grant to the Lender, a security interest in all of such Subsidiary Guarantor’s assets pursuant to such Security Documents as the Lender may require.
3.4 Each Obligor hereby authorizes Lender to file financing statements, without notice to Obligor, with all jurisdictions deemed necessary or appropriate by Lender to perfect or protect ▇▇▇▇▇▇’s interest or rights hereunder. Such financing statements may indicate the Collateral as “all assetsassets of the Debtor” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Loan and Security Agreement (Amyris, Inc.), Loan and Security Agreement (Amyris, Inc.)
Security Interest. (a) As security from the Guarantor for the payment or performance, as the case may be, and performance in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Liabilities, each Grantor the Guarantor hereby confirms the pledge transfers, grants, bargains, conveys, hypothecates, pledges, sets over, delivers and grant to confers unto the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, Agent for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, and grants to the Collateral Agent for the benefit of the Secured Parties a security interest in all its right, title or and interest in or to any and all of the following assets and properties in each case (the "COLLATERAL"), whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):hereinafter acquired:
(i) all AccountsAccounts (including Health-Care-Insurance Receivables, if any) howsoever arising in connection with sale or lease of goods or services by the Guarantor to customers or any other Person (as defined in the Securities Purchase Agreement);
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperInstruments (including Promissory Notes);
(iv) all Documents;
(v) General Intangibles (including, without limitation, Payment Intangibles, Software, contract rights, credits, claims, demands, debts, choses in action, trade-marks, patents, and all Equipmentother intellectual property including, copyrights, and including in each case any documentation pertaining thereto);
(vi) all General IntangiblesLetter-of-Credit Rights;
(vii) all GoodsSupporting Obligations;
(viii) all Instruments, including all Pledged SecuritiesDeposit Accounts;
(ix) all Inventory or documents of titleInvestment Property (including without limitation certificated and uncertificated Securities), customs receiptsSecurities Accounts, insurance certificatesSecurity Entitlements, shipping documents Commodity Accounts, and other written materials related to the purchase or import of any InventoryCommodity Contracts);
(x) all Investment PropertyInventory;
(xi) Equipment (including all Intellectual Propertysoftware, whether or not the same constitutes embedded software, used in the operation thereof);
(xii) all Pledged CollateralMoney, including, without limitation, amounts deposited into escrow or with, third parties;
(xiii) all Records and all books and records pertaining to the CollateralFixtures;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets All rights to merchandise and other funds held goods (including rights to returned or repossessed Goods and rights of stoppage in transit) which is represented by, arises from, or on deposit in relates to any of the foregoing;
(xviiixv) All supporting evidence and documents relating to any of the above-described property, including, without limitation, computer programs, disks, tapes and related electronic data processing media and all rights of the Guarantor to retrieve the same from third parties, written applications, credit information, account cards, payment records, correspondence, delivery and installation certificates, invoice copies, delivery receipts, notes, and other personal property whatsoever evidences of such Grantor; andindebtedness, insurance certificates and the like, together with all books of account, ledgers, and cabinets in which the same are reflected or maintained;
(xixxvi) to the extent not otherwise includedAll Accessions and additions to, all Proceeds, all accessions to and substitutions and replacements for and products of of, any and all of the foregoing and all offsprings, rents profits foregoing; and
(xvii) All Proceeds and products of any the foregoing, and all insurance of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.proceeds thereof;
Appears in 2 contracts
Sources: Guaranty and Security Agreement (Mitel Networks Corp), Guaranty and Security Agreement (Mitel Networks Corp)
Security Interest. (a1) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(ia) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iiib) all Chattel Paper;
(ivc) all cash, Cash Equivalents and Deposit Accounts;
(d) all Documents;
(ve) all Equipment;
(vif) all General Intangibles;
(viig) all Goods
(h) all Instruments;
(viiii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xj) all Investment Property;
(xik) all Letter of Credit Rights;
(l) all Intellectual Property;
(xiim) all Pledged CollateralCommercial Tort Claims, including those described on Schedule IV hereto;
(xiiin) all Records and all books and records pertaining to each of the Collateralfollowing:
(i) Securities Accounts;
(xivii) Investment Property credited to Securities Accounts or Deposit Accounts from time to time and all letters of credit under which such Grantor is the beneficiary and Letter of Credit RightsSecurity Entitlements in respect thereof;
(xv) all Supporting Obligations;
(xviiii) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in any Securities Account or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorDeposit Account; and
(xixiv) all other Money in the possession of the Collateral Agent;
(o) all books and Records pertaining to the extent not otherwise includedArticle 9 Collateral; and
(p) all proceeds, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Loan Document, the Equity Interests Article 9 Collateral will not include, this Agreement will not constitute a grant of a security interest in and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor the security interest granted hereunder will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agentattach to, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsExcluded Asset.
(c2) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral (including all Article 9 Collateral consisting of Pledged Collateral) or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including including:
(xa) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor;
(yb) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates; and
(c) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets”, whether now owned or hereafter acquired, or words of similar effect. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d3) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e4) Notwithstanding anything to the contrary in this Agreement or any other Loan Document, no Grantor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral of such Grantor.
(5) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.any
Appears in 2 contracts
Sources: Term Loan Guarantee and Collateral Agreement (PET Acquisition LLC), Term Loan Guarantee and Collateral Agreement (PET Acquisition LLC)
Security Interest. (a) As security for the payment or performance, as the case may be, performance in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Secured Obligations, including each Guarantee of the Secured Obligations (other than contingent obligations)made pursuant to Article 10 of the Indenture, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired directly owned by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDeposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all InstrumentsIntellectual Property, including all Pledged Securitiesclaims for, and rights to ▇▇▇ for, past or future infringements of Intellectual Property, and all income, royalties, damages and payments now or hereafter due or payable with respect to Intellectual Property;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Goods;
(x) all Instruments;
(xi) all Inventory;
(xxii) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xv) all Supporting Obligations;Money; and
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in (and the terms “Collateral” and “Article 9 Collateral” shall not include) any other Senior Secured Note DocumentExcluded Assets.
(b) The Issuer agrees to prepare and file such financing statements in any relevant jurisdiction as are necessary to establish and maintain a valid, enforceable and perfected security interest in the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Collateral. Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time time, but without obligation, to file in any relevant jurisdiction any financing statements (including fixture filingsFixture filings with respect to any Fixtures associated with Material Real Property that is subject to a Mortgage) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assetsassets of the Debtor, whether now owned or hereafter acquired” of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture Fixture filing, a sufficient description of the real property Material Real Property subject to a Mortgage to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Issuer shall provide reasonable written notice to the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of all such filings made by it on or about the date hereof, and, reasonably promptly thereafter, the Issuer and the Collateral Agent, as applicable, shall provide reasonable written notice to the Borrowerother party of any subsequent filings or amendments, supplements or terminations of existing filings, made from time to time thereafter and, in each case, shall provide to such other party file-stamped copies thereof within a reasonable time following receipt thereof.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Pledge and Security Agreement (CF Industries Holdings, Inc.), Pledge and Security Agreement (CF Industries Holdings, Inc.)
Security Interest. (a) 3.1 As security for the prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of Borrower’s right, title or title, and interest in or in, to any and under all of Borrower’s personal property and other assets including without limitation the following assets and properties in each case (except as set forth herein) whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles (including Intellectual Property); (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) Goods; and all Accounts;
(ii) the Cash Collateral Account (as defined other tangible and intangible personal property of Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located, and any of Borrower’s property in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited possession or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents under the control of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorAgent; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing.
(b) 3.2 Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part broad grant of the Collateral securing the Note Obligations security interest set forth in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securitiesSection 3.1, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeabove, the Collateral Agent, shall not include (a) any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, “intent to use” trademarks at all times prior to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubtfirst use thereof, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted whether by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees actual use thereof in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such eventcommerce, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case recording of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file use with the United States Patent and Trademark Office or otherwise, provided, that upon submission and acceptance by the United States Copyright Patent and Trademark Office of an amendment to allege use of an intent-to-use trademark application pursuant to 15 U.S.C. Section 1060(a) (or any successor officeprovision) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantorintent-to-use application shall constitute Collateral, and naming any Grantor (b) nonassignable licenses or contracts, which by their terms require the Grantors as debtors and consent of the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings licensor thereof or another party (but only to the Borrower.
(e) The Security Interest extent such prohibition on transfer is granted as security only and, except as otherwise required by enforceable under applicable law, shall not subject the Collateral Agent or any other Secured Party toincluding, or in any way alter or modifywithout limitation, any obligation or liability of any Grantor with respect to or arising out Sections 9406, 9407 and 9408 of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonUCC).
Appears in 2 contracts
Sources: Loan and Security Agreement (Communications Systems Inc), Working Capital Loan and Security Agreement (Communications Systems Inc)
Security Interest. (a) As security for the performance by the Borrower of all the terms, covenants and agreements on the part of the Borrower to be performed under this Agreement or any other Transaction Document, including the punctual payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (Aggregate Principal and all Interest in respect of the Loans and all other than contingent obligations)Borrower Obligations, each Grantor the Borrower hereby confirms and reaffirms the pledge grant under the Existing Purchase Agreement, and grant without limiting the foregoing, hereby grants, to the Collateral Agent, Agent for its successors benefit and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured PartiesParties of, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, Agent for its successors benefit and permitted assigns, for the ratable benefit of the Secured Parties, a continuing security interest in all of the Borrower’s right, title or and interest in or in, to any and under all of the following assets and properties in each case following, whether tangible now or intangiblehereafter owned, wherever located, and now owned existing or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest arising (but excluding any Excluded Collateral, collectively, the “Collateral”):
): all of the Borrower’s right, title, and interest now or hereafter existing in, to and under the following of the Borrower’s assets, whether now owned or existing or hereafter acquired, and wherever located (iwhether or not in the possession or control of the Borrower), and all proceeds of the foregoing: (I) all Accounts;
Receivables comprising the Receivable Pool; (iiII) the Cash Collateral Account Related Assets in respect of the Receivable Pool; (as defined III) the Collections in respect of the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
Receivable Pool; (iiiIV) all Chattel Paper;
Transaction Documents; (ivV) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials Contracts related to the purchase or import Receivable Pool; (VI) the Sale Agreement and each Hedge Agreement and, in each case, all rights and remedies of any Inventory;
the Borrower thereunder; (xVII) all Investment Property;
other assets in the Receivable Pool and Related Assets; (xiVIII) each Collection Account and the Payment Account; (IX) all Intellectual Property;
accounts, chattel paper, commercial tort claims, deposit accounts, documents, fixtures, general intangibles (xiiincluding payment intangibles), goods (including equipment and inventory), instruments, investment property, letter-of-credit rights, letters of credit, money, as-extracted collateral, oil, gas and other minerals before extraction, software, supporting obligations, insurance policies and things in action; (X) all Pledged Collateral;
(xiii) all Records rights, interests, remedies, and all books and records pertaining privileges of the Borrower relating to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing including the right to sue for past, present, or future infringement of any or all of the foregoing;
; and (xviii) all other personal property whatsoever of such Grantor; and
(xixXI) to the extent not otherwise included, all Proceedsproducts and Proceeds (the terms in clauses (I) through (XI) not otherwise defined in this Agreement, as defined in the UCC) of the foregoing clauses (I) through (X) and all accessions to and to, substitutions and replacements for for, and rents, profits, and products of any and all the of the foregoing (including insurance proceeds), and all offspringsdistributions (whether in money, rents profits securities, or other property) and products of any of the foregoing and all collateral security and guarantees given by any person collections from or with respect to any of the foregoing.
(b) Notwithstanding anything The parties hereto agree that this Agreement is not intended to constitute a novation or a termination of the obligations under the Existing Purchase Agreement and that the security interest created pursuant to the contrary in this Existing Purchase Agreement or any other Senior Secured Note Document, the Equity Interests is hereby confirmed and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only is intended to the extent that such Equity Interests continue and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Borrower Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make which amends and restates the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonExisting Purchase Agreement.
Appears in 2 contracts
Sources: Receivables Financing Agreement (ADT Inc.), Receivables Financing Agreement (ADT Inc.)
Security Interest. (a) As collateral security for the payment or performance, as the case may be, in full when due of the Obligations (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge mortgages, pledges, hypothecates, grants, assigns and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants transfers to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a lien on and a first priority security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDeposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) Letter-of-Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii) all Pledged books and records pertaining to the Article 9 Collateral;
(xiii) all Records Goods (including, without limitation, Fixtures) and all books and records pertaining to the Collateralother personal property not otherwise described above;
(xiv) all letters the non-exclusive cable franchise referred to in that certain Decision and Order No. 352 issued by the Department of credit under which such Grantor is the beneficiary Commerce and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any Consumer Affairs of the foregoing;
(xviii) all other personal property whatsoever State of such GrantorHawaii, dated June 24, 2011; and
(xixxv) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary foregoing, no security interest shall be granted in this Agreement (i) any FCC License or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only Intellectual Property to the extent that such Equity Interests and the Communications Act or other securities can secure applicable law prohibits the Senior Secured Notes and/or granting of a security interest therein or the guarantees grant of a security interest therein could result in respect thereof without Rule 3-10 the cancellation, voidance or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements invalidity of such subsidiary to be filed with the SEC Intellectual Property, (ii) any contract, General Intangible, Copyright License, Patent License or any other governmental agencyTrademark License (“Intangible Assets”). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only each case to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted grant by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each relevant Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property security interest pursuant to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnershipin such Grantor’s right, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to title and interest in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.such
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Hawaiian Telcom Holdco, Inc.), Credit Agreement (Hawaiian Telcom Holdco, Inc.)
Security Interest. (a) As Each Grantor, as security for the payment or performance, as the case may be, and performance in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accountsaccounts (including accounts receivable and healthcare insurance receivables);
(ii) the Cash Collateral Account all chattel paper (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited whether tangible or required to be deposited thereinelectronic);
(iii) all Chattel Papercash, money and deposit accounts;
(iv) all Documentsdocuments (including electronic documents);
(v) all Equipmentgoods (including all equipment, fixtures and any accessions thereto);
(vi) all General Intangibles;
(vii) all Goodsinstruments (including promissory notes);
(viii) all Instruments, including all Pledged Securitiesinventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all insurance claims and proceeds;
(xi) all Intellectual Propertyletter-of-credit rights;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for supporting obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Administrative Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Administrative Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted to the Administrative Agent, including describing such property as “all assets” or “all property”. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral Each Grantor also ratifies its authorization for the Administrative Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) date hereof. The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or and the United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Dennys Corp), Guarantee and Collateral Agreement (Dennys Corp)
Security Interest. (a) 1.1 As security for the prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of Borrower’s right, title or title, and interest in or in, to any and under all of Borrower’s personal property and other assets including without limitation the following assets and properties in each case (except as set forth herein) whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles; (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) Goods; and all Accounts;
(ii) the Cash Collateral Account (as defined other tangible and intangible personal property of Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located, and any of Borrower’s property in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited possession or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to under the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any control of the foregoing;
(xviii) all other personal property whatsoever of such GrantorAgent; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing.
(b) 1.2 Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part broad grant of the Collateral securing the Note Obligations security interest set forth in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note TrusteeSection 3.1 above, the Collateral Agent, shall not include (“Excluded Collateral”): (a) any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, “intent to use” trademarks at all times prior to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubtfirst use thereof, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted whether by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees actual use thereof in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such eventcommerce, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case recording of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file use with the United States Patent and Trademark Office or otherwise, provided, that upon submission and acceptance by the United States Copyright Patent and Trademark Office of an amendment to allege use of an intent-to-use trademark application pursuant to 15 U.S.C. Section 1060(a) (or any successor officeprovision) such intent-to-use application shall constitute Collateral, (b) nonassignable licenses or contracts, which by their terms require the consent of the licensor thereof or another party (but only to the extent such prohibition on transfer is enforceable under applicable law including, without limitation, Sections 9-406, 9-407, 9-408 and 9-409 of the UCC), (c) any Excluded Accounts, (d) any assets to which the Agent in its sole discretion shall determine that the costs and burdens of obtaining or perfecting a security interest therein substantially outweigh the benefit to the Lenders of the security afforded thereby (including, without limitation, vehicles and other assets subject to a certificate of title), (e) more than 65% of the issued and outstanding shares of capital stock which entitle the holder thereof to vote for directors or any other matter of any Foreign Subsidiary or any Foreign Subsidiary Holding Company, to the extent that the pledge of more than 65% of such voting stock of such Foreign Subsidiary or Foreign Subsidiary Holding Company could reasonably be expected to result in a material adverse tax consequence to Borrower, and solely for as long as such consequence could result, (f) property for which the granting of a security interest therein is contrary to applicable law, rule or regulation, provided that upon the cessation of any such restriction or prohibition, such property shall automatically be included in the Collateral, (g) any cash collateral deposit subject to a Permitted Lien hereunder, if the grant of a security interest with respect to such property pursuant to this Agreement would be prohibited by the agreement creating such Permitted Lien or would otherwise constitute a default thereunder or create a right of termination in favor of a party thereto (other than Borrower or any Subsidiary thereof), provided that upon the termination and release of such cash collateral, such property shall automatically be included in the Collateral, (h) any lease, license or other agreement and any property subject thereto on the Closing Date or on the date of the acquisition of such property (other than any property acquired by Borrower subject to any such contract or other agreement to the extent such contract or other agreement was incurred in contemplation of such acquisition) to the extent that a grant of a security interest therein to secure the Secured Obligations would violate or invalidate such lease, license, contract or agreement or create a right of termination in favor of any other party thereto (other than Borrower or any Subsidiary thereof) (but (A) only to the extent such prohibition is enforceable under applicable law and (B) other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-408 or 9-409 (or any other Section) of Article 9 of the UCC), including any Equity Interests of JV Entities owned by Borrower or any Subsidiary thereof, or (i) property owned by Borrower that is subject to a purchase money Lien or a capital lease (and the proceeds thereof) permitted under this Agreement if the contractual obligation pursuant to which such Lien is granted (or in the document providing for such capital lease) prohibits or requires the consent of any person other than Borrower which has not been obtained as a condition to the creation of, any other Lien on such property.
1.3 Upon termination of this Agreement and repayment in full of all Secured Obligations (other than any inchoate indemnity obligations, any obligations under Bank Services Agreements constituting Secured Obligations that are cash collateralized in accordance with Section 3.4 of this Agreement or for which other satisfactory arrangements with the provider of such Bank Services have been made and any other obligations which, by their terms, are to survive the termination of this Agreement), all security interests in the Collateral granted under this Agreement shall terminate and all rights on the Collateral shall revert to Borrower. The Agent shall execute such documents and take such other steps as may be are reasonably necessary for Borrower to accomplish the purpose foregoing, all at Borrower’s sole cost and expense.
1.4 The security interest granted in Section 3.1 of perfectingthis Agreement shall continue until the Secured Obligations (other than any inchoate indemnity obligations, confirmingany obligations under Bank Services Agreements constituting Secured Obligations that are cash collateralized in accordance with this Section 3.4 of this Agreement or for which other satisfactory arrangements with the provider of such Bank Services have been made and any other obligations which, continuingby their terms, enforcing are to survive the termination of this Agreement) have been paid in full and Lenders have no further commitment or protecting obligation hereunder or under the Security Interest granted by each Grantor, without the signature of other Loan Documents to make any Grantorfurther Advances, and naming shall thereupon terminate upon Borrower providing cash collateral or other credit support (if any) acceptable to SVB in its reasonable discretion (and executing, delivering and filing, alone or with SVB, any Grantor financing statements, security agreements, collateral assignments, notices, control agreements or the Grantors as debtors other documents to perfect SVB’s security interest in such cash collateral) for Secured Obligations constituting Bank Services, if any, and Lenders and the Collateral Agent as secured party. The Collateral Agent agreesshall, upon request by the Borrower and at the Borrower’s expense, take all actions reasonably requested by Borrower to promptly furnish copies evidence such termination. In the event there are Bank Services that are Secured Obligations consisting of outstanding Letters of Credit, upon the termination or acceleration of the Secured Obligations hereunder, Borrower shall provide to SVB cash collateral (and execute, deliver and file, alone or with SVB, any financing statements, security agreements, collateral assignments, notices, control agreements or other documents to perfect SVB’s security interest in such filings cash collateral) in an amount equal to at least (i) one hundred three percent (103.0%) of the face amount of all such Letters of Credit denominated in Dollars and (ii) one hundred eight percent (108.0%) of the Dollar Equivalent of the face amount of all such Letters of Credit denominated in a Foreign Currency, plus, in each case all interest, fees, and costs due or to become due in connection therewith (as estimated by SVB in its good faith business judgment), to secure all of the Secured Obligations relating to such Letters of Credit after the termination or acceleration of the Secured Obligations hereunder. Notwithstanding anything to the Borrower.
(e) The Security Interest contrary herein, it is granted agreed and understood by SVB, on behalf of itself and its applicable Affiliates, that any cash collateral already, as security only andof the Closing Date, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability securing letters of any Grantor credit constituting Bank Services is sufficient cash collateral with respect to the face amounts of such letters of credit and no further cash collateral or arising out other arrangements shall be required in respect thereof at the termination or acceleration of the CollateralSecured Obligations hereunder.
1.5 Borrower acknowledges that it previously has entered, and/or may in the future enter, into Bank Services Agreements with SVB. Nothing contained in this Agreement Regardless of the terms of any Bank Services Agreement, ▇▇▇▇▇▇▇▇ agrees that any amounts Borrower owes SVB thereunder shall be construed deemed to make be Secured Obligations hereunder and that it is the intent of Borrower and SVB to have all such Secured Obligations secured by the first priority perfected security interest in the Collateral granted herein (subject only to Addendum 4 and Permitted Liens, and by any and all other security agreements, mortgages, or other collateral granted to the Agent by ▇▇▇▇▇▇▇▇ as security for the Secured Obligations, now or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Personfuture.
Appears in 2 contracts
Sources: Loan and Security Agreement (Oak Street Health, Inc.), Loan and Security Agreement (Oak Street Health, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”), in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and property of such Grantor now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):), including:
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles, including all Intellectual Property and Licenses;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter-of-Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims described on Schedule IV;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding ; provided, however, that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute, and the term Article 9 Collateral shall not include, a grant of a security interest in any stock excluded from the definition of “Pledged Stock” or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsAssets.
(cb) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) The date hereof. Each Grantor hereby further authorizes the Collateral Agent is further authorized to execute and/or file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorGrantor (including without limitation the Copyright Security Agreement, without the signature of any GrantorPatent Security Agreement and the Trademark Security Agreement), and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The , and each Grantor agrees to execute and deliver any and all agreements, instruments, documents and papers as the Collateral Agent agrees, upon may reasonably request by for purposes of the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrowerforegoing.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Credit Agreement (Sportsman's Warehouse Holdings, Inc.), Guarantee and Collateral Agreement (Sportsmans Warehouse Holdings Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, including the Guaranty, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperCommercial Tort Claims listed on Schedule II hereto;
(iv) all DocumentsDeposit Accounts;
(v) all Documents;
(vi) all Equipment;
(vivii) all Fixtures;
(viii) all General Intangibles;
(viiix) all Goods;
(viiix) all Instruments, including all Pledged Securities;
(ixxi) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxii) all Investment Property;
(xixiii) all Intellectual PropertyPledged Securities;
(xiixiv) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting ObligationsLetters of Credit and Letter-of-Credit Rights;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorMoney; and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in any Excluded Asset or any other Senior Secured Note Document, Excluded Security.
(b) Each Grantor hereby irrevocably authorizes the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Administrative Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Pledge and Security Agreement (VPNet Technologies, Inc.), Pledge and Security Agreement (VPNet Technologies, Inc.)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)its Note Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter of Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii1) Securities Accounts, (2) Financial Assets credited to Securities Accounts or Deposit Accounts from time to time and all Security Entitlements in respect thereof, (3) all Pledged Collateralcash held any Securities Account or Deposit Account and all other money in the possession of the Collateral Agent;
(xiii) all Records and timber to be cut;
(xiv) all other personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoing clauses);
(xv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (A) any vehicle covered by a certificate of title or ownership, whether now owned or hereafter acquired, (B) (i) the Bucksport Co-Gen Assets, (ii) the Excluded Minority Interests, (iii) any other Senior Secured Note DocumentEquity Interests acquired after the Closing Date in a person that is not a Subsidiary if, and to the extent that, and for so long as, a grant of a security interest in such Equity Interests would violate applicable law or an enforceable contractual obligation binding on or relating to such Equity Interests (if such obligation existed at the time of acquisition of such Equity Interests and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Equity Interests), and (iv) any assets acquired after the Closing Date to the extent that, and for so long as, granting a security interest in such assets would violate an enforceable contractual obligation binding on such assets that existed at the time of acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness pursuant to Section 4.03(b)(iv) of the Indenture or any equivalent exception in any other securities Note Document that is secured by a Permitted Lien), (C) any (x) property excluded from the definition of Pledged Collateral by virtue of the proviso to Section 3.01 hereof (other than Section 3.01(a)(iv)) and (y) Rule 3-16 Collateral solely to the extent and with respect to the obligations described in the last paragraph of Section 3.01, (D) any direct Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose, or indirect subsidiary (E) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of Holdings its right, title or interest thereunder to the extent, but only to the extent, that are owned by such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only license, contract or agreement to which such Pledgor is a party (other than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulation) requiring separate financial statements principles of such subsidiary to be filed with equity); provided, that immediately upon the SEC (ineffectiveness, lapse or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements termination of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeprovision, the Collateral Agentshall include, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests Pledgor shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be have granted a part of the Collateral securing the Note Obligations security interest in, all such rights and interests as if such provision had never been in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationseffect.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filingsfilings and filings with respect to timber to be cut) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. relates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property.” Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon including providing within 30 days of any reasonable request by the Borrower and at the Borrower’s expense, therefor legal descriptions of real property (other than real property subject to promptly furnish copies a Mortgage) on which timber to be cut of such filings to the Borrower.
(d) Pledgor is located. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Pledgor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerPledgor constituting Patents, Trademarks or Copyrights.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Collateral Agreement (Verso Paper Holdings LLC), Collateral Agreement (Verso Paper LLC)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(vi) all Instruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xiix) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(x) all Goods and Fixtures;
(xi) all Money, cash, cash equivalents and Deposit Accounts;
(xii) all Letter-of-Credit Rights;
(xiii) all Commercial Tort Claims described on Schedule II from time to time, as such Schedule may be supplemented from time to time pursuant to Section 3.02;
(xiv) each Collateral Account, and all letters of credit under which such Grantor is the beneficiary cash, Money, Securities and Letter of Credit Rightsother investments deposited therein;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalentsSecurity Entitlements in any or all of the foregoing;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorIntellectual Property; and
(xixxviii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and (including proceeds of all offsprings, rents profits and products of any of the foregoing insurance policies) and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything herein to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligationscontrary, to the extent necessary to release and for so long as any asset is Excluded Property, the first-priority security interests in Security Interest granted under this Section 3.01 shall not attach to, and Article 9 Collateral shall not include, such asset; provided, however, that the shares of Equity Interests Security Interest shall immediately attach to, and other securities that are so deemed to no longer constitute part of the Article 9 Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubtshall immediately include, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit asset (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permitportion thereof) upon such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC asset (or any other governmental agencysuch portion) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed ceasing to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsExcluded Property.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent (or its designee) for the benefit of the Secured Parties at any time and from time to time to file in any relevant jurisdiction any financing statements or continuation statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets or all personal property of such Grantor or words of similar effect, effect and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, (or its designee) to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrowerdate hereof.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, security interest granted pursuant to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Term Pledge and Security Agreement, Term Pledge and Security Agreement (Entegris Inc)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a first priority security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter of Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii) all Pledged Collateralother personal property not otherwise described above (except for property specifically excluded from any defined term used in any of the foregoing clauses);
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiv) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in, and the definitions of “Security Interest” and “Article 9 Collateral” shall not include, (a) any vehicle covered by a certificate of title or ownership, whether now owned or hereafter acquired, (b) any assets (including Equity Interests), whether now owned or hereafter acquired, with respect to which the Collateral and Guarantee Requirement or the other paragraphs of Section 5.09 of the Credit Agreement would not be required to be satisfied by reason of Section 5.09(g) of the Credit Agreement if hereafter acquired, (c) any property excluded from the definition of Pledged Collateral by virtue of the proviso to Section 3.01 hereof, (d) any Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose, (e) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any license, contract or agreement to which such Pledgor is a party (other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulationprinciples of equity); provided that immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect or (f) requiring separate financial statements of any Equipment owned by any Pledgor that is subject to a purchase money lien or a Capital Lease Obligation if the contract or other agreement in which such subsidiary to be filed with the SEC Lien is granted (or any other governmental agency). In the event that Rule 3-10 documentation providing for such Capital Lease Obligation) prohibits or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of any person other than the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, Pledgors as a condition to the extent necessary to release the first-priority security interests in the shares creation of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) security interest on such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsEquipment.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor ▇▇▇▇▇▇▇ is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and (acting at the Borrower’s expense, to promptly furnish copies written direction of such filings to the Borrower.
(d) Required Lenders). The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, Pledgor without the signature of any Grantorsuch Pledgor, and naming any Grantor such Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Pledgor shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral of such Pledgor constituting Patents, Trademarks or Copyrights unless required by the Collateral Agent agrees, upon request by the Borrower and (acting at the Borrower’s expensewritten direction of Required Lenders), to promptly furnish copies of such filings to the Borrowerin its reasonable discretion.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Claires Stores Inc), Term Loan Credit Agreement (Claires Stores Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, including the Guarantees, each Grantor hereby confirms the pledge assigns and grant pledges to the Notes Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Notes Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all AccountsProperty;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinAccounts;
(iii) all Chattel Paper;
(iv) all DocumentsCommercial Tort Claims listed on Schedule II hereto;
(v) all Deposit Accounts;
(vi) all Documents;
(vii) all Equipment;
(viviii) all General Intangibles;
(viiix) all GoodsInstruments;
(viiix) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringssupporting obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (A) any letter-of-credit rights, (B) any Securitization Assets, (C) motor vehicles and other assets subject to certificates of title, (D) any Equity Interests in any Unrestricted Subsidiary or any other Senior Secured Note Document, the Equity Interests and other securities of any Subsidiary acquired pursuant to a Permitted Acquisition financed with Indebtedness incurred pursuant to Section 7.03(g) of the Senior Credit Agreement if such Equity Interests serve as security for such Indebtedness or if the terms of such Indebtedness prohibit the creation of any other lien on such Equity Interests, (E) more than 65% of the issued and outstanding voting Equity Interests of any Material Foreign Subsidiary that is a direct or indirect subsidiary of Holdings Holdings, (F) Equity Interests of any Foreign Subsidiary that is not a Material Foreign Subsidiary, (G) Equity Interests of any Subsidiary of a Foreign Subsidiary that is a direct or indirect Subsidiary of Holdings, (H) Equity Interests of any Foreign Subsidiary that are pledged pursuant to a Foreign Pledge Agreement, (I) Equity Interests of any Person that is not an indirect, wholly owned by Subsidiary of Holdings III, (J) (i) if there are outstanding Obligations under the Senior Credit Facilities, any Grantor will constitute Collateral securing Note Obligations for asset with respect to which the benefit of Senior Secured Note Holders only Administrative Agent has confirmed in writing to the extent Issuer its determination that the costs of providing a security interest in such Equity Interests and other securities can secure asset or perfection thereof is excessive in view of the benefits to be obtained by the secured parties under the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 Credit Agreement or Rule 3-16 of Regulation S-X (ii) if there are no outstanding Obligations under the Securities Act Senior Credit Facilities, any asset with respect to which the board of directors or the senior management of the Issuer has confirmed in writing to the Trustee and the Notes Collateral Agent its reasonable determination that the costs of providing a security interest in such asset or perfection thereof is excessive in view of the benefits to be obtained by the Secured Parties, (K) security interests prohibited by law or by agreements containing anti-assignment clauses not overridden by the UCC or other applicable law or (L) any General Intangible, Investment Property or other rights of a Grantor arising under any contract, lease, instrument, license or other document or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties assets subject thereto if (but only to the extent necessary to not be subject to that) the grant of a security interest therein would (x) constitute a violation of a valid and enforceable restriction in respect of such requirement) (any such Equity Interests General Intangible, Investment Property or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations rights in favor of the Note Secured Parties. For a third party or under any law, regulation, permit, order or decree of any Governmental Authority, unless and until all required consents shall have been obtained (for the avoidance of doubt, the restrictions described herein shall not include negative pledges or similar undertakings in favor of a lender or other financial counterparty) or (y) expressly give any other party in respect of any such Equity Interests contract, lease, instrument, license or other document, the right to terminate its obligations thereunder, provided, however, that the limitation set forth in clause (L) above shall remain not affect, limit, restrict or impair the grant by a Grantor of a security interest pursuant to this Agreement in any such Collateral securing to the Loan Obligations extent that an otherwise applicable prohibition or restriction on such grant is rendered ineffective by any applicable law, including the Uniform Commercial Code. Each Grantor shall, if requested to do so by the Trustee, use commercially reasonable efforts to obtain any such required consent that is reasonably obtainable with respect to Collateral which the Trustee reasonably determines to be material.
(b) Each Grantor hereby irrevocably authorizes the Notes Collateral Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Notes Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Notes Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained .
(d) Notwithstanding anything to the contrary in this Agreement or the Indenture, none of the Grantors shall be construed required to make the Collateral Agent enter into any deposit account control agreement or securities account control agreement with respect to any other Secured Party liable as a member of any limited liability company deposit account or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Personsecurities account.
Appears in 2 contracts
Sources: Security Agreement (Freescale Semiconductor Holdings I, Ltd.), Security Agreement (Freescale Semiconductor Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agentpledges, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors on behalf of and permitted assigns, for the ratable benefit of the Secured PartiesCreditors, a security interest (the “Security Interest”) in all of its right, title or and interest in or in, to any and under all of the following assets property and properties in each case other assets, whether tangible or intangible, wherever located, and now owned by or at any time owing to, or hereafter acquired by or arising in favor of, such Grantor or in Grantor, and regardless of where located (all of which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, are collectively referred to as the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account all Chattel Paper (as defined in the Revolving Credit Agreement) including Electronic Chattel Paper and all cash, securities, Instruments and other property deposited or required to be deposited thereinTangible Chattel Paper);
(iii) all Chattel PaperIntellectual Property;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged SecuritiesGoods;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Instruments;
(x) all Inventory;
(xxi) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged CollateralLetter-of-Credit Rights and Supporting Obligations;
(xiii) all Records and all books and records pertaining to the CollateralDeposit Accounts;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit RightsVehicles;
(xv) all Supporting ObligationsCommercial Tort Claims as specified from time to time in Schedule IV hereto (as the same may be updated from time to time in accordance with the terms hereof);
(xvi) all cash or other property deposited with the Collateral Agent or any Secured Creditor or any Affiliate of the Collateral Agent or any Secured Creditor or which the Collateral Agent, for its benefit and cash equivalentsfor the benefit of the other Secured Creditors, or any Secured Creditor or such Affiliate is entitled to retain or otherwise possess as collateral pursuant to the provisions of this Agreement or the Credit Agreement;
(xvii) all Deposit Accounts books, records, files, correspondence, computer programs, tapes, disks and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in related data processing software which contain information identifying or on deposit in pertaining to any of the foregoingforegoing or any Account Debtor or showing the amounts thereof or payments thereon or otherwise necessary or helpful in the realization thereon or the collection thereof;
(xviii) all other personal property whatsoever of such GrantorAs-Extracted Collateral; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all accessions to, substitutions for and replacements, products and cash and non-cash proceeds (including Stock Rights) of the foregoing (including any claims to any items referred to in this definition and all offspringsany claims against third parties for loss of, rents profits and products damage to or destruction of any or all of the foregoing and all collateral security and guarantees given by any person Collateral or for proceeds payable under or unearned premiums with respect to policies of insurance) in whatever form, including cash, negotiable instruments and other instruments for the payment of money, Chattel Paper, collateral agreements and other documents. Notwithstanding the foregoing or anything herein to the contrary, in no event shall the “Article 9 Collateral” include or the Security Interest attach to any of the foregoingExcluded Collateral.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent Creditors at any time and from time to time to file in any relevant U.S. jurisdiction any financing statements (including fixture filings) statements, with respect to the Collateral or any part thereof and amendments thereto that (i) indicate describe the collateral covered thereby in any manner that the Collateral Agent reasonably determines is necessary or advisable to ensure the perfection of the security interest in the Collateral granted under this Agreement, including indicating the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction UCC for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) ), such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in Article 9 Collateral consisting of Patents, Trademarks or Copyrights granted by each Grantor, without the signature of any Grantor, Grantor and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrowercreditor.
(ec) The Security Interest is and the security interest granted pursuant to Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party Creditor to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Credit Agreement (Builders FirstSource, Inc.), Abl Collateral Agreement (Builders FirstSource, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge and grant pledges, assigns, to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”), in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel PaperCommercial Tort Claims;
(iv) all DocumentsChattel Paper;
(v) all Documents;
(vi) all Equipment;
(vivii) all General Intangibles;
(viiviii) all Goods;
(viiiix) all Instruments, including all Pledged Securities;
(ixx) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xxi) all Investment Property;
(xixii) all Intellectual Property;
(xiixiii) all Pledged Collateral;
(xiiixiv) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing. Notwithstanding the foregoing, the Security Interest shall not extend to, and the “Collateral” (and any component definition thereof) shall not include, any Excluded Property.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effect, effect and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any the organizational identification number issued to such Grantor if required for the filing of financing statements in any relevant jurisdiction and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s its expense, to promptly furnish copies of such filings to the Borrower.
(dc) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s its expense, to promptly furnish copies of such filings to the Borrower.
(ed) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
(e) Notwithstanding anything to the contrary herein, no action shall be required to create or perfect a security interest in the Collateral to the extent such creation or perfection would require (i) any filing other than a filing in the United States of America, any state thereof and the District of Columbia, (ii) other actions under the laws of any jurisdiction other than the United States of America, any state thereof and the District of Columbia or (iii) that any control agreements be obtained in respect thereof.
Appears in 2 contracts
Sources: Credit Agreement (Ceridian HCM Holding Inc.), Credit Agreement (Ceridian HCM Holding Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”), in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cashChattel Paper, securities, Instruments and other property deposited or required to be deposited thereinincluding all Electronic Chattel Paper;
(iii) all Chattel PaperCommercial Tort Claims (including all Commercial Tort Claims listed on Schedule IV);
(iv) all Documentscash, Deposit Accounts and all other bank accounts;
(v) all EquipmentDocuments;
(vi) all General Intangibles, including Intellectual Property;
(vii) all Goods;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryEquipment;
(x) all Fixtures;
(xi) all Instruments;
(xii) all Investment Property;
(xixiii) all Intellectual PropertyLetter-of-Credit Rights;
(xiixiv) all Pledged Collateralmonies, whether or not in the possession or under the control of any Secured Party, or a bailee or Affiliate or branch of any Secured Party, including any cash;
(xiiixv) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of of, and all Supporting Obligations for, any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding the above or anything to the contrary else in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note TrusteeAgreement, the Collateral Agent, shall not include any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsExcluded Assets.
(c) Each Grantor hereby irrevocably authorizes the Collateral Administrative Agent for the benefit of the Secured Parties at any time and from time to time to file in any relevant jurisdiction any initial financing statements or continuation statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral Each Grantor also ratifies its authorization for the Administrative Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the Borrower.
(d) date hereof. The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ed) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Credit Agreement (Oscar Health, Inc.), Credit Agreement (Oscar Health, Inc.)
Security Interest. (a) As security for the payment or performanceSubject to Section 3.04, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations)Obligations, each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or and interest in or and to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(vi) all Instruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xiix) all Intellectual PropertyLetter-of-Credit rights;
(xiix) all Pledged CollateralCommercial Tort Claims included in the Article 9 Collateral pursuant to Section 4.04;
(xiiixi) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including other than fixture filingsfilings or other filings required to be made in any real estate recording office) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement (other than a fixture filing or other filing required to be made in any real estate recording office) or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such file in any relevant jurisdiction any initial financing statements (other than fixture filings or other filings required to be made in any real estate recording office) or amendments thereto if filed prior to the Borrowerdate hereof.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is and the security interests granted pursuant to Article III are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained .
(d) Notwithstanding anything herein to the contrary, in this Agreement no event shall the security interest granted hereunder attach to (i) any contract or agreement to which a Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (A) the unenforceability of any right of the Grantor therein or (B) a breach or termination pursuant to the terms of, or a default under, any such contract or agreement (other than to the extent that any such term would be construed rendered ineffective pursuant to make Section 9-406, 9-407, 9-408 or 9-409 of the Collateral Agent New York UCC or any other Secured Party liable as a member applicable law or principles of equity), provided, however, with respect to any limited liability company contract or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue agreement described in clause (i) of this Agreement paragraph (d), that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or otherwise (except as referred to agreement that does not result in the following sentence) shall have any of the dutiesconsequences specified in subclauses (A) or (B) of this paragraph (d) including, obligations any Proceeds of such contract or liabilities agreement, (ii) more than 65% of a member the issued and outstanding voting Equity Interests of any limited liability company Foreign Subsidiary or as a partner (iii) any Excluded Property.
(e) Notwithstanding anything herein to the contrary, any Security Interest in any partnership. The parties hereto expressly agree that, unless Intellectual Property shall be subordinate to any license thereof (other than a license to a Loan Party) permitted under the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonCredit Agreement.
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (Limited Brands Inc), Amendment and Restatement Agreement (Limited Brands Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all of such Grantor’s right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(vi) all Instruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged SecuritiesIntellectual Property Collateral;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xix) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral; (xi) all Goods and Fixtures;
(xii) all Letter-of-Credit Rights;
(xiii) all Commercial Tort Claims described on Schedule 8 of the Perfection Certificate;
(xiv) all letters of credit under which such Grantor is Money, cash, cash equivalents, Deposit Accounts and the beneficiary Cash Collateral Account (and Letter of Credit Rightsall cash, securities and other investments deposited therein);
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit Security Entitlements in any or all of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note DocumentAgreement, the Equity Interests Article 9 Collateral shall not include any, and other securities of any direct or indirect subsidiary of Holdings that are owned by any no Security Interest shall be granted in any, Excluded Assets.
(b) Subject to Section 3.03(h), each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements or continuation statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets or all personal property of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC of each applicable jurisdiction for the filing of any financing statement, continuation statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number (if any) issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 2 contracts
Sources: Security Agreement (Casa Systems Inc), Security Agreement (Casa Systems Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Guaranteed Obligations, each Grantor Guarantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the "Security Interest") in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Guarantor or in which such Grantor Guarantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “"Article 9 Collateral”"):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual PropertyLetter-of-Credit Rights;
(xii) all Pledged CollateralCommercial Tort Claims;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiv) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest (other than the grant of security interest in the Pledged Stock pursuant to Section 3.01) in, and "Article 9 Collateral" shall not include, (a) any Equity Interests of any Person (except for Equity Interests of any Material Subsidiary listed on Schedule VI hereto as such schedule may be updated from time to time, that can be perfected upon the filing of a financing statement), (b) any Material Pledged Debt Securities or any other Senior Secured Note Document, the Equity Interests and other debt securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, pledged pursuant to any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with foreign pledge agreement under the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 , (c) any assets of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only Subsidiary to the extent necessary that, as of the Closing Date, and for so long as, a pledge of such assets would violate a contractual obligation binding on such assets or such Subsidiary, (d) any assets of any Subsidiary acquired after the Closing Date in accordance with the Credit Agreement if, and to not be subject the extent that, and for so long as (1) pledging such assets would violate applicable law or a contractual obligation binding on such assets or such Subsidiary and (2) such law or obligation existed at the time of the acquisition thereof or (e) any United States intent-to-use trademark applications to any such financial statement requirement). In such eventthe extent that, and solely during the period in which, the Security Documents may be amended grant of a security interest therein would impair the validity or modifiedenforceability of such intent-to-use trademark applications under applicable federal law; provided, without that, upon the consent reasonable request of the Note Trustee, the Collateral Agent, Domestic Borrower shall, and shall cause any Senior Secured Note Holder applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses (c) and (d) above, other than those set forth in a joint venture agreement to which Holdings or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsSubsidiary is a party .
(cb) Each Grantor Guarantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) ), continuation statements, or other filings and recordings, with respect to the Article 9 Collateral and any other collateral pledged hereunder or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, or such other information as may be required under applicable law including (xi) whether such Grantor Guarantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Guarantor, (yii) in the case of a financing statement filed as a fixture filingFixtures, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral or other collateral granted under this Agreement, including describing such property as "all assets" or "all property". Each Grantor Guarantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorGuarantor, without the signature of any GrantorGuarantor, and naming any Grantor Guarantor or the Grantors Guarantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 2 contracts
Sources: Domestic Guarantee and Collateral Agreement (Dresser-Rand Group Inc.), Domestic Guarantee and Collateral Agreement (Dresser-Rand Group Inc.)
Security Interest. 7.1 Lead hereby grants to Participant a continuing security interest in the Property described below to secure (ai) As security for the payment or performanceto Participant of all amounts owing to Participant under this Agreement, as the case same may bebe amended, modified, altered, extended or reaffirmed, from time to time; and (ii) all obligations of any and every kind and nature heretofore, now or hereafter owing to Participant under this Agreement (collectively, the "Indebtedness") plus all interest, costs, expenses, and reasonable attorneys' fees, which may be made or incurred by Participant in full when due (whether at stated maturitythe administration and collection of said Indebtedness, by acceleration or otherwise) and in the protection, maintenance, and liquidation of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge Property. This Agreement will continue in effect as long as any Indebtedness of Lead to Participant is outstanding and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, unpaid. The "Property" covered by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in all right, title or interest in or to any and this Agreement is all of the following assets and properties in each case whether tangible or intangibleLead's personal property, wherever located, which Lead now owns or shall hereafter acquire or create, immediately upon the acquisition or creation thereof, including without limitation all: (a) Accounts (including health-care and now owned other insurance receivables); (b) Chattel Paper (whether tangible or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any rightelectronic); (c) Inventory; (d) Goods (other than Inventory), title or interest but including Equipment; (but excluding any Excluded Collaterale) Instruments, collectively, the “Collateral”):
including Promissory Notes; (f) Investment Property and Securities; (g) Documents; (h) Deposit Accounts; (i) all Accounts;
Commercial Tort Claims specifically identified by Lead or Participant; (iij) the Cash Collateral Account money; (as defined in the Revolving k) Letters of Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv1) all General Intangibles (including payment intangibles and software); (m) Supporting Obligations;
; and (xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixn) to the extent not otherwise includedlisted above as original Property, all Proceeds, all accessions to and substitutions and replacements for proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b7.2 Lead hereby irrevocably authorizes Participant to file financing statement(s) Notwithstanding anything describing the Property in all public offices deemed necessary by Participant, and to the contrary in this Agreement or take any and all actions, including, without limitation, filing all financing statements, continuation financing statements and all other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings documents that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary Participant may reasonably determine to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority perfect and maintain Participant's security interests in the shares Property.
7.3 Lead represents and warrants that: (a) the Property is free and clear of Equity Interests all liens or security interests, except Participant's security interest; (b) Lead has a first priority security interest in the Property; (c) Lead's exact legal name and other securities that the address of its chief executive office are so deemed to no longer constitute part as set forth in Section 12.7 of this Agreement; (d) the Collateral securing State under which Lead is organized is the Note Obligations State where Lead has its chief executive office (as set forth in favor Section 12.7 of this Agreement); (e) the Note Secured Parties. For Property, wherever located, is covered by this Agreement; (f) the avoidance execution and delivery of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit this Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 any instruments evidencing liabilities have been approved by all of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulationits organizational documents and will not violate nor constitute a breach of Lead's organizational documents, or any other lawagreement or restriction of any type whatsoever to which Lead is a party or is subject; (g) there are no actions or proceedings which are threatened or pending against Lead which might result in any material adverse change in Lead's financial condition or which might materially affect any of Lead's assets; and (h) Lead has duly filed all federal, rule or regulation is adoptedstate, which would permit) such subsidiary’s Equity Interests and other securities governmental tax returns which Lead is required by law to secure the Senior Secured Notes and/or the related guarantees in excess file, and will continue to file same during such time as any of the amount then pledged without the filing with the SEC (Indebtedness hereunder remain owing to Participant and all such taxes required to be paid have been paid, in full. Participant does not authorize Lead to make, and Lead agrees not to make, any sales, leases, licenses or any other governmental agency) dispositions of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of Property. Lead shall not grant a member of any limited liability company or as a partner security interest in any partnership. The parties hereto expressly agree that, unless of the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonProperty without Participant's prior written consent.
Appears in 1 contract
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)of the Credit Parties, each Grantor Credit Party hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, (wherever located, and ) now owned or at any time hereafter acquired by such Grantor Credit Party or in which such Grantor Credit Party now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash, cash equivalents and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesGoods;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, Instruments (including all the Pledged Debt Securities);
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment PropertyProperty (including the Pledged Equity Interests);
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xii) all Intellectual Property;
(xiii) all Commercial Tort Claims, including, without limitation, those described on Schedule IV hereto;
(1) Securities Accounts, (2) Investment Property credited to Securities Accounts or Deposit Accounts from time to time and all Security Entitlements in respect thereof, (3) all cash held in any Securities Account or Deposit Account and (4) all other money in the possession of the Collateral Agent;
(xv) all Supporting Obligations;books and Records pertaining to the Article 9 Collateral; and
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any motor vehicle, aircraft, airframe, rolling stock and other assets subject to a certificate of title or ownership, whether now owned or hereafter acquired, (b) any Excluded Equity Interests, (c) any Letter of Credit Rights relating to any letter of credit with a face amount not in excess of $5,000,000, except to the extent constituting a support obligation for other Collateral as to which perfection of a security interest therein can be perfected by the filing of any financing statement under the Uniform Commercial Code (or similar filing in any applicable jurisdiction), and to the extent the applicable Credit Party is not required by applicable law to apply the proceeds of a drawing of such letter of credit for a specified purpose, (d) any Credit Party’s right, title or interest in any lease, license or agreement or any other Senior Secured Note Documentproperty subject to a purchase money security interest, Financing Lease Obligation or similar arrangements to which such Credit Party is a party or any of its right, title or interest thereunder, the Equity Interests property subject thereto, any insurance in respect thereof, any management or operating agreement with respect thereto and other securities deposits made in respect thereof and all rights, title or interest in relation to any of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only foregoing, in each case, to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X a grant would, under the Securities Act (or any other law, rule or regulation) requiring separate financial statements terms of such subsidiary to be filed with lease, license or agreement, purchase money, financing lease or similar arrangement result in a breach of the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulationterms of, or any other lawconstitute a default under, rule or regulation is adoptedresult in the abandonment, which would require) the filing with the SEC (invalidation or any other governmental agency) unenforceability of separate financial statements or create a right of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations termination in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without require the consent of any other party (in each case, other than a Credit Party) to, such lease, license or agreement, (e) (i) all owned real property interests with a fair market value (as reasonably determined by the Note TrusteeBorrower in good faith) equal to or less than $7,500,000; and (ii) all leasehold interests (it is understood that there shall be no requirement to obtain landlord waivers, estoppels or collateral access agreements or acknowledgements, bailee waivers and similar letters), (f)(i) payroll, healthcare and other employee wage and benefit accounts, (ii) tax accounts, including, without limitation, sales tax accounts, (iii) escrow, defeasance, discharge and redemption accounts, (iv) fiduciary or other trust accounts, and, in the case of clauses (i) through (iv), the Collateral Agentfunds or other property held in or maintained in such account, any Senior Secured Note Holder (v) zero-balance accounts, (vi) accounts in jurisdictions other than in the jurisdiction of organization of the applicable granting Credit Party, the United States or any holder state thereof, and (vii) accounts other than those described in the preceding clauses with respect to which the average daily balance of Other Pari Passu Lien Obligationsthe funds maintained on deposit therein does not exceed $1,000,000 in the aggregate (such accounts in this clause (f) being the “Excluded Accounts”) (g) any Commercial Tort Claim with an expected value not in excess of $1,000,000, as determined in good faith by the Borrower, (h) the Borrower’s or its subsidiaries’ rights in relation to aircraft and airframes, including rights under any lease, sublease, charter, management, operating, crew, service, repair, maintenance, storage or other agreement relating to the aircraft, rights in the aircraft and any parts, accessions and accessories thereto, rights under insurance policies and security deposits and rights in income derived from and proceeds of any of the foregoing, in the ordinary course, (i) assets if the granting of a security interest therein would result in material adverse tax consequences to any Credit Party as reasonably determined by the Borrower, (j) those assets as to which the Requisite Lenders and the Borrower reasonably determine in good faith that any of the cost, burden or consequences (including adverse tax consequences) of obtaining or perfecting such a security interest in such assets is excessive in relation to the practical benefit to the Secured Parties of the security to be afforded thereby, (k) foreign intellectual property, (l) any United States “intent to use” trademark application or intent-to-use service m▇▇▇ application filed pursuant to Section 1(b) of the L▇▇▇▇▇ Act, to the extent necessary and during the period that the grant of a security interest therein would impair the validity or enforceability of, or render void or voidable or result in the cancellation of the applicable Credit Party’s right, title or interest therein or any trademark or service m▇▇▇ registration that issues as a result of such application under applicable federal law (including prior to release the firstfiling and acceptance of a “Statement of Use” or “Amendment to Allege Use” with respect thereto), after which period such application shall be automatically subject to the security interest granted herein and deemed to be included in the Collateral, (m) intellectual property specifically requiring a filing in a jurisdiction outside of the United States, (n) any assets (including interests in partnerships, joint ventures and other non-priority wholly owned entities) in respect of which and to the extent that pledges and security interests in are prohibited by law or prohibited by agreements containing anti-assignment clauses not overridden by the shares of Equity Interests New York UCC or other applicable law, (o) any assets and other securities that are so deemed proceeds thereof subject to no longer constitute part a Financing Lease Obligation or a purchase money lien permitted by clause 13 of the Collateral securing the Note Obligations definition of “Permitted Liens” in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary such a grant would violate or invalidate the documents providing for such Financing Lease Obligation or purchase money lien and (p) prior to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent Discharge of the Note Trustee, the Collateral AgentABL Obligations, any Senior Secured Note Holder property that would otherwise constitute ABL Priority Collateral but is an Excluded Asset (as such term is defined in the ABL Collateral Agreement); provided that clauses (b), (d), (k) or any holder of Other Pari Passu Lien Obligations, (n) shall not include (x) items to the extent necessary the prohibition or restriction on the assignment or pledge thereof hereunder is ineffective under Section 9-406, 9-407, 9-408, or 9-409 of the UCC, any other applicable anti-assignment provisions of the UCC or other applicable law (including without limitation Title 11 of the United States Code) or (y) proceeds from the sale, license, lease or other disposition and receivables of the assets referred to in such clause (including Accounts and other monies due or to become due under or in connection therewith), the assignment of which is expressly deemed effective under Section 9-406, 9-407, 9-408, or 9-409 of the UCC, any other applicable anti-assignment provisions of the UCC or other applicable law notwithstanding such prohibition (the assets described in clauses (a) through (p) above, subject to the Liens under foregoing proviso, collectively, the Security Documents “Excluded Assets”); provided that such additional Equity Interests exclusions shall not de facto apply to the proceeds of any of the property referred to in the foregoing clauses (d), (k) and other securities. This (n) of this Section 3.01(b3.01 or in clauses (A) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsand including (I) of Section 2.01(a).
(cb) Each Grantor Credit Party hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral (including Article 9 Collateral consisting of Pledged Collateral) or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Credit Party is an organization, the type of organization and any organizational identification number issued to such Grantor and Credit Party, (yii) in the case of a financing statement filed as a fixture filingfiling in a Uniform Commercial Code filing office, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary to ensure the perfection of the Security Interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets”, “all assets whether now owned or hereafter acquired”, or words of similar effect. Each Grantor Credit Party agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting reflecting the Security Interest granted by each Grantor, without the signature of any GrantorCredit Party, and naming any Grantor Credit Party or the Grantors Credit Parties as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Credit Party shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerCredit Party constituting Intellectual Property.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Credit Party with respect to or arising out of the Collateral. Nothing contained .
(d) Notwithstanding anything to the contrary in this Agreement or the Credit Agreement, (i) no perfection steps shall be construed required by any means other than (A) filings pursuant to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to Uniform Commercial Code in the following sentence) shall have any office of the dutiesSecretary of State (or equivalent filing office) of the relevant State(s) of the respective jurisdictions of organization of each Credit Party, obligations or liabilities (B) filings in the United States Patent and Trademark Office and the United States Copyright Office of a member the Intellectual Property Security Agreement, (C) delivery of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement promissory notes and instruments evidencing Indebtedness for borrowed money; provided that such delivery shall not be construed as creating required with respect to (1) promissory notes and instruments evidencing Indebtedness for borrowed money having an aggregate principal amount not in excess of $5,000,000, (2) any promissory notes and instruments evidencing Indebtedness for borrowed money that are promptly deposited into an investment or securities account, (3) checks received in the ordinary course of business and (4) promissory notes and instruments evidencing Indebtedness issued in connection with the extension of trade credit by the grantor of a partnership or joint venture among security interest, (D) delivery of Collateral consisting of certificated Equity Interests included in the Collateral to the Collateral Agent, Term Loan Agent, Term Loan Representative or any Additional Term Agent, as applicable, in accordance with the ABL/Term Loan Intercreditor Agreement, (E) recording of mortgages with respect to all owned real property interests with a fair market value Fair Market Value greater than $7,500,000 and (E) other Secured Party, actions expressly required by this Agreement or the Credit Agreement or as set forth in any Grantor and/or local law security agreement; (ii) no actions shall be required in order to create any security interest in assets located or titled outside of the United States or make enforceable any such security interest; (iii) no security shall be taken or perfected over movable plant and equipment to the extent requiring any labeling or segregation of such plant or equipment; (iv) no security shall be taken or perfected over any stock in trade to the extent this would require any item-specific or periodic listing of stock in trade or any segregation thereof; (v) no Control Agreement shall be required to be executed and delivered with respect to any Excluded Account; (vi) no notice shall be required to be delivered to Account Debtors or other Personcontractual third parties prior to the occurrence and during the continuance of an Event of Default; and (vii) no action in addition to the filings contemplated under clause (i) above shall be required to perfect the Security Interest in any Commercial Tort Claim or Letter of Credit Right included in the Collateral.
Appears in 1 contract
Security Interest. (a) As security for In order to secure the payment or performanceSecured Obligations, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor Borrower hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, Agent for the ratable benefit of the Secured Parties, Parties a continuing security interest in all right, title or interest in or to any and all of the following assets and properties in each case property of the Borrower whether tangible or intangible, wherever located, and now owned or at any time existing or hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest arising and regardless of where located (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all AccountsPurchased Receivables and all of the Borrower’s rights under the Transaction Documents;
(ii) all right, title and interest of the Cash Collateral Account (as defined Borrower in the Revolving Credit AgreementCollateral Account, each Deposit Account and each Securities Account, and for each such Securities Account, all Financial Assets held therein or credited thereto (including all cash, Instruments and Investment Property) and all cash, securities, Instruments and other property deposited or required to be deposited thereinSecurity Entitlements in respect thereof;
(iii) Borrower’s rights under all Supplier Agreements;
(iv) all Accounts;
(v) all Chattel Paper;
(ivvi) all cash and Deposit Accounts;
(vii) all Documents;
(v) all Equipment;
(viviii) all General Intangibles;
(vii) all Goods;
(viiiix) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual PropertyLetter-of-Credit Rights;
(xii) all Pledged books and records of the Borrower pertaining to any of its Collateral;; and
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any Proceeds of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of Collateral described in the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoingclauses (ii) through (xii).
(b) Notwithstanding anything With respect to the contrary each right to payment or performance included in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only from time to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such eventtime, the Security Documents may be amended Interest granted therein includes a continuing security interest in (i) any Supporting Obligation that supports such payment or modified, without the consent of the Note Trustee, the Collateral Agent, performance and (ii) any Senior Secured Note Holder Lien that (x) secures such right to payment or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, performance or (y) secures any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsSupporting Obligation.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or transfer or in any way alter affect or modify, any obligation or liability of any Grantor the Borrower with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations Collateral or liabilities of a member of any limited liability company or as a partner transaction in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Personconnection therewith.
Appears in 1 contract
Sources: Credit Agreement
Security Interest. To secure the full and timely payment, performance and satisfaction of the Secured Obligations, each Debtor hereby collaterally assigns to Secured Party, and grants Secured Party a security interest in, all of such Debtor’s property, whether now owned or hereafter existing or acquired, regardless of where located including, without limitation, all of such Debtor’s:
(a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(iib) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cashChattel Paper, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all including Electronic Chattel Paper;
(ivc) Computer Hardware and Software and all rights with respect thereto, including, any and all licenses, options, warranties, service contracts, program services, test rights, maintenance rights, support rights, improvement rights, renewal rights and indemnifications, and any substitutions, replacements, additions or model conversions of any of the foregoing
(d) Commercial Tort Claims now or hereafter identified on Schedule 2.01(d) to this Agreement;
(e) Deposit Accounts;
(f) Documents;
(vg) all EquipmentFinancial Assets;
(vih) all General Intangibles;
(viii) Goods (including all Goodsof its Equipment, Fixtures and Inventory), and all embedded software, accessions, additions, attachments, improvements, substitutions and replacements thereto and therefor);
(viiij) all Instruments, including all Pledged Securities;
(ixk) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryIntellectual Property;
(xl) all Investment Property;
(xim) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xvn) all Supporting Obligationsmoney (of every jurisdiction whatsoever);
(xvio) all cash and cash equivalentsSecurity Entitlements;
(xviip) all Deposit Accounts Supporting Obligations
(q) with respect to each Person (as hereinafter defined) listed in Schedule 2.01(q) hereto and Securities Accountseach other corporation hereafter acquired or formed by such Debtor, the Equity Interests from time to time issued and outstanding, including the certificates, if any, representing the Equity Interests and any interest of such Debtor in the entries on the books of the issuer thereof or any financial intermediary pertaining to the Equity Interests, together with all dividends, cash, marketable securitiesoptions, securities entitlementswarrants, financial assets rights, instruments, distributions, returns of capital or principal, income, interest, profits and other funds held in property, interests (debt or on deposit in any equity) or proceeds as a result of a split, revision, reclassification, consolidation, merger or other like change of the foregoingEquity Interests or any issuer thereof, from time to time received, receivable or otherwise distributed to such Debtor in respect of or in exchange for any or all of the Equity Interests;
(xviiir) all other personal property whatsoever of promissory notes or intercompany notes and and all certificates or instruments evidencing such Grantorpromissory notes or intercompany notes; and
(xix) and to the extent not otherwise includedincluded in the foregoing, all Proceeds, all accessions to and substitutions and replacements for and products other personal property of any kind or description, together with all books, records, writings, data bases, information and all of the foregoing and all offspringsother property relating to, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect used or useful in connection with, or evidencing, embodying, incorporating or referring to any of the foregoing.
(b) Notwithstanding anything to , and all Proceeds, products, rents, issues, profits and returns of and from any of the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings foregoing; provided that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests the provisions of any lease or license of Computer Hardware and Software or Intellectual Property expressly prohibit (which prohibition is enforceable under applicable law) the assignment thereof, and the grant of a security interest therein, the Secured Party will not enforce its security interest (other securities can secure the Senior Secured Notes and/or the guarantees than in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing Proceeds thereof) for so long as such prohibition continues, it being understood that upon request of the Note Obligations Secured Party, such Debtor will in good faith use reasonable efforts to obtain consent for the creation of a security interest in favor of the Note Secured Parties Party (but only and to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiaryParty’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements enforcement of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (ysecurity interest) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide Debtor's rights under such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrowerlease or license.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”), in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Paper;cash, Payment Intangibles and Deposit Accounts
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all Letter-of-Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing. Notwithstanding anything herein to the contrary, in no event shall the Collateral include, and no Grantor shall be deemed to have granted a security interest in, any Excluded Asset or any Excluded Equity Interests.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings Notwithstanding anything to the Borrowercontrary provided herein, no Grantor shall be required to (a) deliver any certificates evidencing Equity Interests issued by Non-Significant Subsidiaries or minority Equity Interests, (b) take steps to perfect any security interest with respect to letter of credit rights and commercial tort claims (except to the extent perfected through the filing of Uniform Commercial Code financing statements) or (c) enter into or deliver security documents governed by laws of a jurisdiction other than the United States or any State thereof or the District of Columbia.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Pledgor hereby confirms the pledge and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsGoods, including Equipment, Fixtures and Inventory;
(v) all Equipment;
(vi) all General Intangibles;
(vi) all Instruments;
(vii) all GoodsInvestment Property (other than the Pledged Securities);
(viii) all Instruments, including all Pledged SecuritiesLetters of Credit and Letter-of-Credit Rights;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryCommercial Tort Claims;
(x) all Investment Propertybooks and records pertaining to the Article 9 Collateral;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxii) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing. Notwithstanding anything to the contrary herein, the term Article 9 Collateral shall not include Excluded Property.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Administrative Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. relates and (iii) a description of collateral that describes such property in any other manner as the Administrative Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property.” Each Grantor Pledgor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Nuance Communications, Inc.)
Security Interest. (a) As security for the payment or performanceFor value received, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor Debtor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Party a security interest (the "Security Interest") in and to all right, title or interest in or to of the following: any and all retail motor vehicle installment sale contracts (the "Contracts") acquired with the funds constituting the Indebtedness or with funds received from the repayment of said Contracts (the following assets "Replacement Contracts") or the Replacement Contracts, which Contracts or Replacement Contracts are originated in connection with the financing of new and properties used automobiles and light-duty trucks (the "Vehicles"), including all rights to receive payments thereunder and security interests in each case and instruments of title to the Vehicles, whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time acquired, all funds in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, following bank account __________________; all proceeds of the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related offering pursuant to the purchase or import Registration Statement of any Inventory;
Debtor declared effective by the Securities and Exchange Commission on _______________, 1994 (x) the "Registration Statement"); and in all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records products thereof and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and non-cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in proceeds of any of the foregoing;
(xviii) , in any form, including, without limitation, proceeds of insurance policies from the loss thereof, all other personal property whatsoever of such Grantor; and
(xix) titles to the extent not otherwise includedVehicles and all assignment of liens, all ProceedsContracts, all accessions to Vehicle Titles, assignments or other documents and substitutions instruments located in a segregated, locked fireproof file cabinet marked "Cabinet #_____________ -__________________________. - Secured Notes - Series ___" in the possession, custody and replacements for and products control of any and the Custodian as described in paragraph 4.5 hereof (all of the foregoing and all offspringshereinafter called the "Collateral"); provided, rents profits and products of any of however, that the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or interest granted hereunder is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests conditions and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) limitations set forth in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors Registration Statement and the Collateral Agent may be released to Debtor as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to set forth in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonCustodian Agreement.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Each Grantor hereby confirms the pledge pledges and grant grants to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded CollateralProperty, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash ▇▇ ▇▇▇▇ Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Letter-of-Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalentsCash Equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all rights to any price protection payments, rebates, discounts, credits, factory holdbacks, incentive payments and other amounts which at any time are due Grantors from a Floorplan Approved Vendor in connection with Floorplan Financed Inventory;
(xix) all other personal property whatsoever of such Grantor; and
(xixxx) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Administrative Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral Administrative Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(dc) The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Administrative Agent as secured party. The Collateral Administrative Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ed) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Administrative Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, and neither the Collateral Administrative Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Administrative Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Administrative Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Forum Merger Corp)
Security Interest. (a) 3.1 As security for the prompt, complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor Borrower hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Lender a security interest in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and Borrower’s personal property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in acquired, including the future may acquire any right, title or interest following (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles (other than Intellectual Property); (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments Goods and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents tangible and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other intangible personal property whatsoever of such GrantorBorrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located; and
and (xixj) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any each of the foregoing foregoing; provided, however, that the Collateral shall (i) include all Accounts and General Intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all collateral or any part, or rights in, the Intellectual Property (the “Rights to Payment”) and (ii) not include (A) more than 65% of the issued and outstanding voting capital stock of any Subsidiary that is incorporated or organized in a jurisdiction other than the United States or any state or territory thereof or the District of Columbia if to do so could reasonably be expected to cause Borrower adverse tax consequences under Internal Revenue Code Section 956 (or any successor statute); (B) Intellectual Property (other than Rights to Payment); (C) any Equipment or Proceeds thereof that is subject to a Lien that is otherwise permitted by clause (vii) of the definition of “Permitted Lien” hereunder if inclusion of such Equipment would constitute a breach by Borrower of its agreement with a third party equipment lessor or lender, provided, that upon the release of any such Lien such Equipment shall be deemed to be Collateral hereunder and shall be subject to the security interest granted herein; (D) cash held in money market account no. 1892029636 at Comerica in an amount not to exceed $552,000 plus accrued interest to secure certain letters of credit; and guarantees given (E) cash subject to a Lien permitted by clause (xiv) of the definition of “Permitted Liens”. Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, and the existence of such security interest would not otherwise violate or breach any person provision in any applicable agreement or contract that is enforceable under the UCC with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guaranteesapplicable Intellectual Property, then the Equity Interests Collateral shall automatically, and other securities of such subsidiary shall automatically be deemed not to be part effective as of the Collateral securing Closing Date, include the Note Obligations in favor of the Note Secured Parties (but only Intellectual Property to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent permit perfection of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority Lender’s security interests interest in the shares of Equity Interests and other securities that are so deemed Rights to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured PartiesPayment. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor Lender hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agreesBorrower, upon request by the Borrower and at the Borrower’s expense, with any release, partial termination or other documents reasonably requested by Borrower to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office reflect or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and confirm that the Collateral Agent as secured party. The Collateral Agent agrees, upon request by does not include any property excluded from the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrowerdefinition thereof.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Loan and Security Agreement (Aveo Pharmaceuticals Inc)
Security Interest. The Debtor hereby grants to the Secured Party a security interest in, an assignment of, a general lien upon and a right of set-off against the following described property (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) "Property"):
2.1 all of the Loan Obligations (other than contingent obligations)Debtor's Accounts of any kind whether now existing or hereafter arising; all Escrow and Deposit Accounts; all chattel papers, each Grantor hereby confirms the pledge documents and grant instruments relating to the Collateral AgentAccounts and the Escrow and Deposit Accounts; and all rights now or hereafter existing in and to all security agreements, its successors leases, and permitted assigns other contracts securing or otherwise relating to any Accounts, Escrow and Deposit Accounts or any such chattel papers, documents and instruments;
2.2 all of the security interest Debtor's Equipment in all of its forms, whether now owned or hereafter acquired and wherever located; all parts thereof and all accessions or additions thereto, whether now owned or hereafter acquired;
2.3 all of the Original Guarantee Debtor's general intangibles of any kind whether now existing or hereafter arising (herein called the "General Intangibles"); all chattel papers, documents and Collateral Agreementinstruments relating to the General Intangibles; and all rights now or hereafter existing in and to all security agreements, for the ratable benefit leases, licenses, permits, patents, trademarks, copyrights, distribution agreements and contracts securing or otherwise relating to any General Intangibles or any such chattel papers, documents and instruments and all of the Loan Secured PartiesDebtor's lien rights against other persons whether statutory, contractual or by common law;
2.4 all of the Debtor's Inventory in all of its forms, whether now owned or hereafter acquired and wherever located, and all accessions or additions thereto and products thereof, whether now owned or hereafter acquired;
2.5 without in any way limiting or modifying the foregoing in any respect, all of the Debtor's goods, chattels, business records, contracts, contract rights, advertising agreements, tax refunds, documents of title, fixtures, insurance policies and proceeds, patents, trademarks, service marks, logos, trade names, copyrights and applications therefor, licenses, licensing fees, permits, approvals, consents, certificates, stock, surveys, engineering reports, tools, landscaping, machinery, furniture, furnishings, business machines, appliances, vehicles, trailers, rolling stock, deposits, security deposits, money, securities, claims, demands, causes of action, refunds, rebates, income and all other tangible and intangible real, personal or mixed property whether now owned or hereafter acquired;
2.6 any additional properties or assets from time to time delivered to or deposited with the Secured Party as security for the payment Secured Indebtedness or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants otherwise pursuant to the Collateral Agent, its successors and permitted assigns, for the ratable benefit terms of the Secured Parties, a security interest in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit this Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included2.7 all proceeds, all Proceedsproducts, all accessions to and additions to, replacements of, substitutions and replacements for and products accessions of any and all of the foregoing items described in subparagraphs 2.1, 2.2, 2.3, 2.4, 2.5 and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary 2.6 in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsparagraph 2.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations, including the Obligations (other than contingent obligations)under the Guaranty, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and/or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperCommercial Tort Claims listed on Schedule II hereto;
(iv) all DocumentsDeposit Accounts and Securities Accounts;
(v) all EquipmentDocuments;
(vi) all General IntangiblesEquipment;
(vii) all GoodsFixtures;
(viii) all InstrumentsGeneral Intangibles and all Intellectual Property (including Intellectual Property Licenses and all causes of action for infringement of any of the Copyright, including all Pledged SecuritiesPatents and Trademarks, or unfair competition regarding the same (in the case of Trademarks));
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Goods;
(x) all Instruments;
(xi) all Inventory;
(xxii) all Investment Property;
(xixiii) all Intellectual PropertyPledged Securities;
(xiixiv) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting ObligationsLetters of Credit and Letter-of-Credit Rights;
(xvi) all cash and cash equivalentsMoney;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantorproperty; and
(xixxviii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement, this Agreement or shall not constitute a grant of a security interest in (and the term “Collateral” shall not include) any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Excluded Assets.
(b) Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assetsassets of the Debtor, whether now owned or hereafter acquired” of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge grants (and grant reaffirms its prior grants) to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all of such Grantor’s right, title or and interest in or in, to and under any and all of the following assets and properties in each case properties, whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Personal Property Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account all Chattel Paper (as defined in the Revolving Credit Agreement) including, without limitation, all Tangible Chattel Paper and all cash, securities, Instruments and other property deposited or required to be deposited thereinElectronic Chattel Paper);
(iii) all Chattel PaperDocuments of Title;
(iv) all DocumentsEquipment;
(v) all EquipmentIntangibles;
(vi) all General IntangiblesInstruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xiix) all Intellectual Property;
(xii) all Pledged books and records, customer lists, credit files, computer programs, printouts, other computer materials and records, in each case, pertaining to the Personal Property Collateral;
(xiiix) all Records Goods and all books and records pertaining to the Collateralfixtures;
(xivxi) all letters of credit under which Money, cash, cash equivalents, Deposit Accounts, Securities Accounts and Commodities Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Grantor is the beneficiary with any bank or other financial institution and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accountsmonies, including all cash, marketable securities, securities entitlements, financial assets Instruments and other funds held in investments deposited or on deposit required to be deposited in any of the foregoing;
(xviiixii) all Collateral Accounts, Concentration Accounts, DDAs, Blocked Accounts and all cash, cash equivalents, Money, Securities and other personal property whatsoever investments deposited therein;
(xiii) all Supporting Obligations;
(xiv) all Security Entitlements in any or all of such Grantorthe foregoing;
(xv) all Intellectual Property and Licenses; and
(xixxvi) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations including, for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, Proceeds and products of any such Equity Interests Excluded Assets that are not themselves Excluded Assets; provided that Personal Property Collateral shall remain Collateral securing not include, and the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement Security Interest shall not attach to, and this Agreement. In the event that Rule 3-10 no representation, warranty or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, covenant contained herein or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) Document shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the dutiesfollowing assets or property, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.each being an “Excluded Asset”:
Appears in 1 contract
Sources: Abl Revolving Credit Agreement (Advantage Solutions Inc.)
Security Interest. (a) As security for the prompt, complete and indefeasible payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration payment dates or otherwise) of all the Loan Secured Obligations (other than contingent obligationsand in order to induce Lender to make the Loan(s) upon the terms and subject to the conditions of the Note(s), each Grantor Borrower hereby confirms the pledge assigns, conveys, mortgages, pledges, hypothecates and grant transfers to the Collateral Agent, its successors and permitted assigns of the Lender for security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Partiespurposes only, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Lender a security interest in in, all of Borrower's right, title or and interest in or in, to any and all under each of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in (all of which such Grantor now has or at any time in being hereinafter collectively called the future may acquire any right, title or interest (but excluding any Excluded "Collateral, collectively, the “Collateral”"):
(ia) all AccountsAll Receivables;
(iib) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all All Equipment;
(vic) all All Fixtures;
(d) All General Intangibles;
(viie) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any All Inventory;
(xf) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records All other goods and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorBorrower whether tangible or intangible and whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located; and
(xixg) to To the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document. Notwithstanding, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute foregoing Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that include (i) indicate the Collateral as “all assets” of such Grantor any contracts or words of similar effect, agreements which prohibit Borrower from granting a security interest therein and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including intent to use trademark applications (xiii) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor leased personal property and (yiv) any collateral pledged to Transamerica Business Credit Corporation; and (v) any deposit accounts up to $1,200,000 pledged to Imperial Bank, now existing or hereinafter in the case existence, as collateral for letters of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request credit provided by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerImperial Bank.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Subordinated Loan and Security Agreement (Adesso Healthcare Technology Services Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant grants to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in in, or to or under which such Grantor now has or at any time in the future hereafter may acquire any right, title or interest interest, regardless of where located (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperMoney and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles, including all Intellectual Property;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents other Goods and other written materials related to the purchase or import of any InventoryFixtures;
(x) all Investment Property;
(xi) all Intellectual PropertyLetters of Credit and Letter-of-Credit Rights;
(xii) all Pledged CollateralSupporting Obligations;
(xiii) all Records Commercial Tort Claims specifically described on Schedule 12 to the Perfection Certificate, as such schedule may be supplemented from time to time (it being understood such Schedule 12 shall be deemed supplemented by any reference to any Commercial Tort Claim (and the description thereof) contained in a Supplemental Perfection Certificate or pursuant to Section 4.04(e) of this Agreement);
(xiv) all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxv) to the extent not otherwise included, all Proceedsother personal property of such Grantor, whether tangible or intangible, and all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of, each of the foregoing, any and all Proceeds of any of the foregoing and all collateral security and guarantees given by any person insurance, indemnity, warranty or guaranty payable to such Grantor from time to time with respect to any of the foregoing. Notwithstanding anything herein to the contrary, to the extent and for so long as any asset is an Excluded Asset, the Security Interest granted under this Section shall not attach to, and Article 9 Collateral shall not include, such asset (it being understood that the Security Interest shall immediately attach to, and Article 9 Collateral shall immediately include, any such asset (or any portion thereof) upon such asset (or such portion thereof) ceasing to be an Excluded Asset).
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby irrevocably authorizes the Collateral Administrative Agent (and its designees) at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment to the Collateral Administrative Agent promptly upon written request. The Collateral Administrative Agent agrees, upon request by the Borrower (and at the Borrower’s expense, to promptly furnish copies each of such filings to the Borrower.
(dits designees) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is and the security interest granted pursuant to Article III are granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due and performance of all Loan Secured Obligations (whether at stated maturityas scheduled, by upon acceleration or otherwise) and of the all costs of collection and enforcement of such Loan Secured Obligations (but not any other than contingent obligationsSecured Obligations), each Grantor Debtor hereby confirms the pledge conveys, mortgages, pledges and grant assigns to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured PartiesSecurity Trustee, and as security for the payment or performance, as the case may be, hereby creates in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured PartiesSecurity Trustee, a continuing first priority security interest in in, but none of its obligations or liabilities respecting, all of Debtor's right, title or and interest in and to the following described property, rights and privileges, whether now owned or hereafter acquired (other than Excluded Payments) (which property, rights and privileges, excluding Excluded Payments, but including all property hereafter specifically subject to the Lien of this Agreement by the terms hereof or any supplement hereto constitute the "COLLATERAL"):
(1) The Airframe which is one EMBRAER [EMB-145 model EMB-135 KL] [EMB-145LR] aircraft with the FAA Registration number of [_____] and the manufacturer's serial number of [______] and the Engines with the manufacturer's serial numbers of [______] and [______], each of which is a[n] [Rolls Royce] ▇▇▇▇▇▇▇ model [AE3007A1/3] [AE3007A1P] engine and is of 750 or more rated takeoff horsepower or the equivalent of such horsepower as the same is now and will hereafter be constituted, whether now owned by the Debtor or hereafter acquired, leased or intended to be leased under the Lease, and in the case of such Engines, whether or not any such Engine shall be installed in or attached to the Airframe or any other airframe, together with (a) all Parts of whatever nature, which are from time to time included within the definitions of "Airframe" or "Engines", whether now owned or hereafter acquired, including all substitutions, renewals and replacements of and additions, improvements, accessions and accumulations to the Airframe and Engines (other than additions, improvements, accessions and accumulations which constitute appliances, parts, instruments, appurtenances, accessories, furnishings or other equipment excluded from the definition of Parts) and (b) all Aircraft Documents;
(2) All right, title, interest, claims and demands of the Debtor, as Lessor, in, to and under the Lease, together with all rights, powers, privileges, options and other benefits of the Debtor as lessor under the Lease, including the immediate and continuing right to receive and collect all Rent, income, revenues, issues, profits, insurance proceeds, condemnation awards and other payments, tenders and security now or hereafter payable to or receivable by the Lessor under the Lease pursuant thereto, and, subject to Section 6.2(b) hereof, the right to make all waivers and agreements, to give and receive copies of all notices and other instruments or communications, to accept surrender or redelivery of the Aircraft or any part thereof, as well as all the rights, powers and remedies on the part of the Debtor, as Lessor under the Lease, to take such action upon the occurrence and during the continuance of a Lease Event of Default thereunder, including the commencement, conduct and consummation of legal, administrative or other proceedings, as shall be permitted by the Lease or by Law, and to do any and all other things whatsoever which the Debtor or any lessor is or may be entitled to do under or in respect of the following assets Lease and properties any right to restitution from the Lessee or any other Person in respect of any determination of invalidity of the Lease;
(3) All right, title, interest, claims and demands of the Debtor in, to and under:
(a) the Purchase Agreement;
(b) the Purchase Agreement Assignment and the Engine Warranty Agreement;
(c) the Bills of Sale; and
(d) any and all other contracts, agreements and instruments relating to the Airframe and Engines or any rights or interests therein to which the Debtor is now or may hereafter be a party; together with all rights, powers, privileges, licenses, easements, options and other benefits of the Debtor under each case whether tangible contract, agreement and instrument referred to in this clause (3), including the right to receive and collect all payments to the Debtor thereunder now or intangiblehereafter payable to or receivable by the Debtor pursuant thereto and, wherever locatedsubject to Section 5.1(f) hereof, the right to make all waivers and agreements, to give and receive notices and other instruments or communications, or to take any other action under or in respect of any thereof or to take such action upon the occurrence of a default thereunder, including the commencement, conduct and consummation of legal, administrative or other proceedings, as shall be permitted thereby or by Law, and now owned to do any and all other things which the Debtor is or at may be entitled to do thereunder and any time hereafter acquired by such Grantor right to restitution from the Lessee, the Owner Participant or any other Person in which such Grantor now has respect of any determination of invalidity of any thereof;
(4) All rents, issues, profits, revenues and other income of the property subjected or at any time in required to be subjected to the future may acquire any Lien of this Security Agreement, including all payments or proceeds payable to the Debtor after termination of the Lease with respect to the Aircraft as the result of the sale, lease or other disposition thereof, and all estate, right, title or and interest (but excluding any Excluded Collateral, collectively, of every nature whatsoever of the “Collateral”):
(i) all AccountsDebtor in and to the same;
(ii5) Without limiting the Cash Collateral Account generality of the foregoing, all insurance and requisition proceeds with respect to the Aircraft or any part thereof, including the insurance required under Section 11 of the Lease;
(as defined in 6) Without limiting the Revolving Credit Agreement) generality of the foregoing, all rights of the Debtor to amounts paid or payable by Lessee to the Debtor under the Participation Agreement and all cashrights of the Debtor to enforce payments of any such amounts thereunder;
(7) Without limiting the generality of the foregoing, securities, Instruments all monies and other property securities from time to time deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory with the Security Trustee pursuant to any terms of this Security Agreement or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related the Lease or required hereby or by the Lease to be held by the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to Security Trustee hereunder as security for the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any obligations of the foregoing;
(xviii) all other personal property whatsoever Lessee under the Lease or of such Grantorthe Debtor hereunder; and
(xix8) All Proceeds of the foregoing; excluding, however, in all events from each of foregoing clauses (1) through (8) inclusive all Excluded Payments and the right to specifically enforce the same or to ▇▇▇ for damages for the breach thereof as provided in Section 6.2(b) hereof.
1. TO HAVE AND TO HOLD all and singular of the aforesaid property unto the Security Trustee and its successors and assigns in trust for the benefit and security of the Lender and for the uses and purposes and subject to the extent not otherwise included, all Proceeds, all accessions to terms and substitutions and replacements for and products of provisions set forth in this Security Agreement. It is hereby further agreed that any and all property described or referred to in the granting clauses hereof which is hereafter acquired by Debtor shall IPSO FACTO, and without any further conveyance, assignment or act on the part of Debtor or the Security Trustee, become and be subject to the Lien and security interest herein granted as fully and completely as though specifically described herein, but nothing contained in this paragraph shall be deemed to modify or change the obligations of Debtor contained in the foregoing paragraphs. Debtor does hereby ratify and all offspringsconfirm the Lease and does hereby agree that it will not violate any covenant or agreement made by it therein, rents profits herein or in any other Collateral Document and products will not take any action not permitted by this Security Agreement, or omit to take any action required by this Security Agreement, the taking or omission of which would reasonably be expected to result in an alteration or impairment of any Collateral Document or any of the foregoing and all collateral security and guarantees given rights created by any person with respect to any of such document or the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings assignment hereunder. Debtor agrees that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to time, upon the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 written request of the Uniform Commercial Code of each applicable jurisdiction Security Trustee, Debtor will promptly and duly execute and deliver or cause to be duly executed and delivered any and all such further instruments and documents as the Security Trustee may reasonably request which are necessary to perfect, preserve or protect the mortgage, security interests and assignments created or intended to be created hereby or to obtain for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, Security Trustee the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description full benefits of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower assignment hereunder and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateralrights and powers herein granted. Nothing contained in this Agreement SECTION 2 shall be construed to make grant the Collateral Agent or any other Secured Party liable as Security Trustee a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner security interest in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonExcluded Payment.
Appears in 1 contract
Security Interest. (a) As security for To secure the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) and performance of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) all of the Obligations (other than contingent obligations)when due, each Grantor Borrower hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Silicon a security interest in all right, title or of Borrower's interest in or to any and all of the following assets and properties in each case following, whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor acquired, and wherever located (collectively, the "Collateral"): All Inventory, Equipment, Receivables, and General Intangibles, including, without limitation, all of Borrower's Deposit Accounts, and all money, and all property now has or at any time in the future may acquire any rightin Silicon's possession (including claims and credit balances), title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
proceeds (iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import proceeds of any Inventory;
(x) insurance policies, proceeds of proceeds and claims against third parties), all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records products and all books and records pertaining related to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and (all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary , together with all other property in this Agreement which Silicon may now or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubtfuture be granted a lien or security interest, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in herein, collectively, as the following sentence) shall have any of the duties"Collateral").* *NOTWITHSTANDING THE FOREGOING, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree thatTHE COLLATERAL SHALL NOT INCLUDE ANY RIGHTS TO EXERCISE ANY PUT UNDER THE EQUITY LETTER AGREEMENT DATED MARCH 30, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto1999 BETWEEN BORROWER AND CERTAIN INVESTORS, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral AgentPURSUANT TO WHICH BORROWER HAS THE RIGHT TO REQUIRE SUCH INVESTORS TO PURCHASE EQUITY SECURITIES OF THE BORROWER, any other Secured Party, any Grantor and/or any other PersonAS IN SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT EFFECT AT THE DATE HEREOF (A TRUE COPY OF WHICH HAS BEEN PROVIDED BY BORROWER TO SILICON).
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, including all Pledged SecuritiesGoods;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryInstruments;
(x) all Investment Intellectual Property;
(xi) all Intellectual PropertyInventory;
(xii) all Investment Property other than the Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xiv) all minerals, oil, gas and As-Extracted Collateral;
(xv) all Supporting Obligations;books and records pertaining to the Article 9 Collateral; and
(xvi) all cash substitutions, replacements, accessions, products and cash equivalents;
proceeds (xviiincluding insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds of suit) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in any Credit Documents, this Agreement shall not constitute a grant of a security interest in (and the Article 9 Collateral shall not include) and the other provisions of the Credit Documents with respect to Collateral need not be satisfied with respect to (a) motor vehicles or other assets subject to certificates of title and commercial tort claims, (b) any assets over which the granting of security interests in such assets would be prohibited by an enforceable contractual obligation binding on the assets that existed at the time of the acquisition thereof and was not created or made binding on the assets in contemplation or in connection with the acquisition of such assets (except in the case of assets owned on the Acquisition Date or acquired after the Acquisition Date with Indebtedness of the type permitted pursuant to Section 6.03(b)(iv) of the Term Loan Agreement and any equivalent provision in the Indenture), applicable law or regulation (in each case, except to the extent such prohibition is unenforceable after giving effect to applicable provisions of the Uniform Commercial Code, other Senior Secured Note Documentthan proceeds thereof, the Equity Interests and other securities assignment of any direct which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibitions) or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests security interests would require obtaining the consent of any governmental authority or would result in materially adverse tax consequences as reasonably determined by the Borrower in writing delivered to the Collateral Agent, (c) those assets with respect to which, in the reasonable judgment of the Applicable Agent and the Borrower, evidenced in writing delivered to the Agent, the costs or other securities consequences of obtaining or perfecting such a security interest are excessive in view of the benefits to be obtained by the Secured Parties therefrom, (d) any Letter of Credit Rights (other than to the extent a Lien thereon can secure the Senior Secured Notes and/or the guarantees be perfected by filing a customary financing statement), (e) any Excluded Securities, (f) any Pledgor’s right, title or interest in respect thereof without Rule 3-10 any license, contract or Rule 3-16 of Regulation S-X under the Securities Act (agreement to which such Pledgor is a party or any other lawof its right, rule title or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due interest thereunder to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guaranteesextent, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent, that such a grant would violate the terms of applicable law or of such license, contract or agreement, or result in a breach of the terms of, or constitute a default under, any such license, contract or agreement to which such Pledgor is a party (other than to the extent necessary that any such term would be rendered ineffective pursuant to not Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or regulation (including Title 11 of the United States Code) or principles of equity); provided that, immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest in, all such rights and interests as if such provision had never been in effect, (g) any equipment or other asset owned by any Pledgor that is subject to such requirement) (a purchase money lien or a Capitalized Lease Obligation, in each case, as permitted under the Term Loan Agreement and the Indenture and not prohibited by any such Equity Interests other Credit Document, if the contract or other securities, “Excluded Note Collateral”). In agreement in which such event, Lien is granted (or the Security Documents may be amended documentation providing for such Capitalized Lease Obligation) prohibits or modified, without requires the consent of any person other than the Note TrusteePledgors as a condition to the creation of any other security interest on such equipment or asset and, in each case, such prohibition or requirement is permitted by under Term Loan Agreement and the Indenture and not prohibited by any other Credit Document, (h) any foreign collateral or credit support with respect to such foreign collateral (other than any such assets pledged pursuant to the Pledge Agreement), (i) any real property (owned or leased) or oil and gas properties (owned or leased) other than the Mortgaged Properties, and (j) any asset at any time that is not then subject to a Lien securing First-Priority Lien Obligations at such time (the foregoing clauses (a) through (j), the Collateral Agent“Excluded Assets”)(1). With respect to the Collateral, no control agreements or control arrangements will be required with respect to any Senior Secured Note Holder Deposit Accounts, Securities Accounts, Commodity Contracts or any holder other asset, the perfection of Other Pari Passu Lien Obligations, a security interest in which specifically requires a control arrangement or control agreement (other than the delivery of Pledged Securities to the Applicable Agent to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted required by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirementArticle II). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property” or words of similar effect. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) 3.1 As security for the prompt, complete and indefeasible payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of Borrower’s right, title or title, and interest in and to the following personal property whether now owned or to any hereafter acquired (collectively, the “UCC Collateral”): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles; (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) Goods; and all other tangible and intangible personal property of the following assets Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time of Borrower’s property in the future possession or under the control of Agent; and, to the extent not otherwise included, all Proceeds of each of the foregoing and all accessions to, substitutions and replacements for, and rents, profits and products of each of the foregoing; provided, however, that the Collateral shall not include (i) any Intellectual Property, (ii) the Investigational New Drug Application (including any amendments thereto and foreign equivalents thereof) for the Licensed Product, (iii) New Drug Application N202080 (including any amendments or supplements thereto), (iv) all approvals (including pricing and reimbursement approval and schedule classifications), product and establishment licenses, registrations and authorizations of any regulatory or other governmental authority granted or issued with respect to the Licensed Product, (v) any filings made with any regulatory or governmental authority with respect to any of (ii), (iii) and/or (iv), and (vi) data, reports, records and documentation relating to the Licensed Product, trademarks, trade names, and/or logos under which only the Licensed Product has been or is being marketed or sold (excluding, for avoidance of doubt, Borrower’s house marks), any clinical trial agreements (and all data, including clinical data, materials and information) solely related to the Licensed Product, and all sublicense agreements with respect to the Licensed Product; but provided further that the Collateral shall include all Accounts and General Intangibles that consist solely of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the Intellectual Property and the other assets set forth in clauses (ii) through (vi) of the preceding proviso.
3.2 Subject to the Deemed Dividend Release Condition, Section 3.3 and the limitations set forth in Section 3.1, Parent shall, as security for the Secured Obligations, cause each Subsidiary to deliver a Joinder Agreement (or Guaranty) and grant to Agent a security interest in all of such Subsidiary’s assets pursuant to such Security Documents as Agent may acquire any right, title or interest require (but excluding any Excluded such assets pledged pursuant to such Security Documents being the “Pledged Collateral” and together with the UCC Collateral, collectively, the “Collateral”):).
3.3 Egalet Limited shall, as security for the Secured Obligations, grant to Agent a security interest in Egalet Limited’s (ia) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accountsaccounts holding Investment Property pursuant to the terms of Account Pledge Agreements and (b) subject to the limitation set forth in Section 3.1, including all cashother assets owned as of the Closing Date pursuant to the terms of the Danish Security Documents, marketable securitiesbut only to the extent that a fixed charge can be created over such Deposit Accounts and assets in clause (b) of this Section 3.3.
3.4 Notwithstanding the broad grant of the security interest set forth in this Section 3 and the other Security Documents, securities entitlementsupon the occurrence of the Deemed Dividend Release Condition, financial assets (a) the liens and other funds held security interests granted by any Controlled Foreign Corporation hereunder or under any of the Security Documents, shall be automatically terminated, (b) any Joinder Agreement (or Guaranty) executed by such Controlled Foreign Corporation shall be automatically terminated and the Controlled Foreign Corporation executing such Joinder Agreement (or Guaranty) shall be released from its obligations thereunder, and (c) the security interest granted by the Borrower in any of Borrower’s right, title or on deposit interest in any of the foregoing;outstanding voting capital stock or other ownership interests of any Controlled Foreign Corporation shall be automatically reduced to a grant in an amount nof 65% of the voting power of all classes of capital stock or other ownership interests of such Controlled Foreign Corporation entitled to vote. In furtherance of clauses (a), (b), and (c) above, Agent shall, at Parent’s sole cost and expense, forthwith release all of its liens and security interests in the assets of any Borrower and Controlled Foreign Corporation granted hereunder and shall execute and deliver all UCC termination statements and/or other documents (including amendments to any Security Documents) reasonably requested by the Borrower evidencing such termination.
(xviii) 3.5 Borrower shall file on or before the due date therefor all other personal property whatsoever tax returns in respect of such Grantor; and
(xix) the Collateral. Notwithstanding the foregoing, Borrower may contest, in good faith and by appropriate proceedings, taxes for which Borrower maintains adequate reserves therefor in accordance with GAAP. Without duplication of Section 7.10 below, Borrower agrees to the extent not otherwise includedpay, all Proceedsand to save Agent and Lender harmless from, all accessions to and substitutions and replacements for and products of any and all of the foregoing liabilities with respect to, or resulting from any delay in paying, any and all offspringsregistration, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person stamp, excise, sales or other similar taxes that may be payable or determined to be payable with respect to any of the foregoingCollateral.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) a. As security for the prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of Borrower’s right, title or title, and interest in or in, to any and under all of ▇▇▇▇▇▇▇▇’s personal property and other assets including without limitation the following assets and properties in each case (except as set forth herein) whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles; (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) all Accounts;
Goods; (iij) the Cash Collateral Account (as defined Antecip License Agreement and all proceeds thereof; and all other tangible and intangible personal property of Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located, and any of Borrower’s property in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited possession or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents under the control of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorAgent; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing.
(b) b. Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part broad grant of the Collateral securing the Note Obligations security interest set forth in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securitiesSection 3.1, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeabove, the Collateral Agentshall not include (collectively, the “Excluded Property”) (a) any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, “intent to use” trademarks at all times prior to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubtfirst use thereof, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted whether by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees actual use thereof in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such eventcommerce, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case recording of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file use with the United States Patent and Trademark Office or otherwise, provided, that upon submission and acceptance by the United States Copyright Patent and Trademark Office of an amendment to allege use of an intent-to-use trademark application pursuant to 15 U.S.C. Section 1060(a) (or any successor officeprovision) such documents as may be necessary for intent-to-use application shall constitute Collateral, (b) non-assignable property, licenses or contracts, which by their terms require the purpose consent of perfectingthe licensor thereof or another party (but only to the extent such prohibition on transfer is enforceable under applicable law, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantorincluding, without limitation, Sections 9406, 9407 and 9408 of the signature of UCC), (c) any Grantor, and naming any Grantor particular asset if the pledge thereof or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest security interest therein is granted as security only and, except as otherwise required prohibited or restricted by applicable law, rule or regulation (including any requirement to obtain the consent of any governmental authority, regulatory authority or third party), provided that the foregoing exclusion of this clause (c) shall not in no way be construed (1) to apply to the extent that any described prohibition or restriction is unenforceable under Section 9406, 9407 or 9408 of the UCC or other applicable law or (2) to apply to the extent that any consent or waiver has been obtained, or is hereafter obtained, that would permit the Agent’s security interest or Lien notwithstanding the prohibition or restriction on the pledge of such asset, (d) any Excluded Accounts, including cash pledged pursuant to Permitted Liens and any Deposit Account, securities account, commodities account or other account to the extent solely and exclusively used to hold any cash pledged as a Permitted Lien, and (e) Equipment and software (and the products and proceeds thereof) subject to Permitted Liens of the type described in clause (vii) of the definition of Permitted Liens, but only to the extent and for so long as the agreements under which the equipment is financed prohibit granting a security interest therein to Lender.
c. Upon termination of this Agreement and repayment if full of all Secured Obligations (other than any inchoate indemnity obligations and any other obligations which, by their terms, are to survive the termination of this Agreement), all security interest in the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in granted under this Agreement shall be construed to make terminate and all rights on the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred shall revert to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnershipBorrower. The parties hereto expressly agree that, unless the Collateral Agent shall become execute such documents and take such other steps as are reasonably necessary for Borrower to accomplish the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant heretoforegoing, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Personall at Borrower’s sole cost and expense.
Appears in 1 contract
Sources: Loan and Security Agreement (Axsome Therapeutics, Inc.)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)of the Credit Parties, each Grantor Credit Party hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, (wherever located, and ) now owned or at any time hereafter acquired by such Grantor Credit Party or in which such Grantor Credit Party now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash, cash equivalents and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesGoods;
(vii) all GoodsGeneral Intangibles;
(viii) all Instruments, Instruments (including all the Pledged Debt Securities);
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment PropertyProperty (including the Pledged Equity Interests);
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xii) all Intellectual Property;
(xiii) all Commercial Tort Claims, including, without limitation, those described on Schedule IV hereto;
(1) Securities Accounts, (2) Investment Property credited to Securities Accounts or Deposit Accounts from time to time and all Security Entitlements in respect thereof, (3) all cash held in any Securities Account or Deposit Account and (4) all other money in the possession of the Collateral Agent;
(xv) all Supporting Obligations;books and Records pertaining to the Article 9 Collateral; and
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any motor vehicle, aircraft, airframe, rolling stock and other assets subject to a certificate of title or ownership, whether now owned or hereafter acquired, (b) any Excluded Equity Interests, (c) any Letter of Credit Rights relating to any Letter of Credit with a face amount not in excess of $5,000,000, except to the extent constituting a support obligation for other Collateral as to which perfection of a security interest therein can be perfected by the filing of Uniform Commercial Code (or similar filing in any applicable jurisdiction), and to the extent such Credit Party is not required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose, (d) any Credit Party’s right, title or interest in any lease, license or agreement or any other Senior Secured Note Documentproperty subject to a purchase money security interest, Capital Lease Obligation or similar arrangements to which such Credit Party is a party or any of its right, title or interest thereunder, the Equity Interests property subject thereto, any insurance in respect thereof, any management or operating agreement with respect thereto and other securities deposits made in respect thereof and all rights, title or interest in relation to any of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only foregoing, in each case, to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X a grant would, under the Securities Act (or any other law, rule or regulation) requiring separate financial statements terms of such subsidiary to be filed with lease, license or agreement, purchase money, capital lease or similar arrangement result in a breach of the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulationterms of, or any other lawconstitute a default under, rule or regulation is adoptedresult in the abandonment, which would require) the filing with the SEC (invalidation or any other governmental agency) unenforceability of separate financial statements or create a right of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations termination in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without require the consent of any other party (in each case, other than a Credit Party) to, such lease, license or agreement, (e) (i) all owned real property; and (ii) all leasehold interests (it is understood that there shall be no requirement to obtain landlord waivers, estoppels or collateral access agreements or acknowledgements, bailee waivers and similar letters), (f)(i) payroll, healthcare and other employee wage and benefit accounts, (ii) tax accounts, including, without limitation, sales tax accounts, (iii) escrow, defeasance, discharge and redemption accounts, (iv) fiduciary or other trust accounts, and, in the Note Trusteecase of clauses (i) through (iv), the Collateral Agentfunds or other property held in or maintained in such account, any Senior Secured Note Holder (v) zero-balance accounts, (vi) accounts in jurisdictions other than in the jurisdiction of organization of the applicable granting Credit Party, the United States or any holder state thereof, and (vii) accounts other than those described in the preceding clauses with respect to which the average daily balance of Other Pari Passu Lien Obligationsthe funds maintained on deposit therein does not exceed $1,000,000 in the aggregate; provided that, no DDAs shall constitute Excluded Assets (such accounts in this clause (f) being the “Excluded Accounts”) (g) any Commercial Tort Claim with an expected value not in excess of $1,000,000, as determined in good faith by the Parent Borrower, (h) the Parent Borrower’s or its subsidiaries’ rights in relation to aircraft and airframes, including rights under any lease, sublease, charter, management, operating, crew, service, repair, maintenance, storage or other agreement relating to the aircraft, rights in the aircraft and any parts, accessions and accessories thereto, rights under insurance policies and security deposits and rights in income derived from and proceeds of any of the foregoing, in the ordinary course, (i) assets if the granting of a security interest therein would result in material adverse tax consequences to any Credit Party as reasonably determined by the Parent Borrower, (j) those assets as to which the Collateral Agent and the Parent Borrower reasonably determine in good faith that any of the cost, burden or consequences (including adverse tax consequences) of obtaining or perfecting such a security interest in such assets is excessive in relation to the practical benefit to the Secured Parties of the security to be afforded thereby, (k) foreign intellectual property, (l) any United States “intent to use” trademark application or intent-to-use service m▇▇▇ application filed pursuant to Section 1(b) of the L▇▇▇▇▇ Act, to the extent necessary and during the period that the grant of a security interest therein would impair the validity or enforceability of, or render void or voidable or result in the cancellation of the applicable Credit Party’s right, title or interest therein or any trademark or service m▇▇▇ registration that issues as a result of such application under applicable federal law (including prior to release the firstfiling and acceptance of a “Statement of Use” or “Amendment to Allege Use” with respect thereto), after which period such application shall be automatically subject to the security interest granted herein and deemed to be included in the Collateral, (m) intellectual property specifically requiring a filing in a jurisdiction outside of the United States, (n) any assets (including interests in partnerships, joint ventures and other non-priority wholly owned entities) in respect of which and to the extent that pledges and security interests in are prohibited by law or prohibited by agreements containing anti-assignment clauses not overridden by the shares of Equity Interests New York UCC or other applicable law, (o) any assets and other securities that are so deemed proceeds thereof subject to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms a Capital Lease Obligation or a purchase money lien permitted by Section 6.2(ll) of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary such a grant would violate or invalidate the documents providing for such Capital Lease Obligation or purchase money lien and (p) prior to not be subject to any such financial statement requirementthe Discharge of Term Loan Collateral Obligations (as defined in the ABL/Term Loan Intercreditor Agreement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder property that would otherwise constitute ABL Priority Collateral but is an Excluded Asset (as such term is defined in the ABL Collateral Agreement); provided that clauses (b), (d), (k) or any holder of Other Pari Passu Lien Obligations, (n) shall not include (x) items to the extent necessary the prohibition or restriction on the assignment or pledge thereof hereunder is ineffective under Section 9-406, 9-407, 9-408, or 9-409 of the UCC, any other applicable anti-assignment provisions of the UCC or other applicable law (including without limitation Title 11 of the United States Code) or (y) proceeds from the sale, license, lease or other disposition and receivables of the assets referred to in such clause (including Accounts and other monies due or to become due under or in connection therewith), the assignment of which is expressly deemed effective under Section 9-406, 9-407, 9-408, or 9-409 of the UCC, any other applicable anti-assignment provisions of the UCC or other applicable law notwithstanding such prohibition (the assets described in clauses (a) through (p) above, subject to the Liens under foregoing proviso, collectively, the Security Documents “Excluded Assets”); provided that such additional Equity Interests exclusions shall not de facto apply to the proceeds of any of the property referred to in the foregoing clauses (d), (k) and other securities. This (n) of this Section 3.01(b3.01 or in clauses (A) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsand including (I) of Section 2.01(a).
(cb) Each Grantor Credit Party hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Article 9 Collateral (including Article 9 Collateral consisting of Pledged Collateral) or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Credit Party is an organization, the type of organization and any organizational identification number issued to such Grantor and Credit Party, (yii) in the case of a financing statement filed as a fixture filingfiling in a Uniform Commercial Code filing office, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Collateral Agent may reasonably determine is necessary to ensure the perfection of the Security Interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets”, “all assets whether now owned or hereafter acquired”, or words of similar effect. Each Grantor Credit Party agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be reasonably necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting reflecting the Security Interest granted by each Grantor, without the signature of any GrantorCredit Party, and naming any Grantor Credit Party or the Grantors Credit Parties as debtors and the Collateral Agent as secured party. The Notwithstanding anything to the contrary herein, no Credit Party shall be required to take any action under the laws of any jurisdiction other than the United States (or any political subdivision thereof) and its territories and possessions for the purpose of perfecting the Security Interest in any Article 9 Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the BorrowerCredit Party constituting Intellectual Property.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Credit Party with respect to or arising out of the Collateral. Nothing contained .
(d) Notwithstanding anything to the contrary in this Agreement or the Credit Agreement, (i) no perfection steps shall be construed required by any means other than (A) filings pursuant to make the Uniform Commercial Code in the office of the Secretary of State (or equivalent filing office) of the relevant State(s) of the respective jurisdictions of organization of each Credit Party, (B) filings in the United States Patent and Trademark Office and the United States Copyright Office of the Intellectual Property Security Agreement, (C) delivery of Collateral consisting of promissory notes and instruments evidencing Indebtedness for borrowed money; provided that such delivery shall not be required with respect to (1) promissory notes and instruments evidencing Indebtedness for borrowed money having an aggregate principal amount not in excess of $5,000,000, (2) any promissory notes and instruments evidencing Indebtedness for borrowed money that are promptly deposited into an investment or securities account, (3) checks received in the ordinary course of business and (4) promissory notes and instruments evidencing Indebtedness issued in connection with the extension of trade credit by the grantor of a security interest, (D) delivery of Collateral consisting of certificated Equity Interests included in the Collateral Agent to Collateral Agent, Term Loan Agent, Term Loan Representative or any Additional Term Agent, as applicable, in accordance with the ABL/Term Loan Intercreditor Agreement and (E) other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party actions expressly required by virtue of this Agreement or otherwise the Credit Agreement or as set forth in any local law security agreement; (except as referred ii) no actions shall be required in order to create any security interest in assets located or titled outside of the United States or make enforceable any such security interest; (iii) no security shall be taken or perfected over movable plant and equipment to the extent requiring any labeling or segregation of such plant or equipment; (iv) no security shall be taken or perfected over any stock in trade to the extent this would require any item-specific or periodic listing of stock in trade or any segregation thereof; (v) no Control Agreement shall be required to be executed and delivered with respect to any Excluded Account; (vi) no notice shall be required to be delivered to Account Debtors or other contractual third parties prior to the occurrence and during the continuance of an Event of Default; and (vii) no action in addition to the filings contemplated under clause (i) above shall be required to perfect the Security Interest in any Commercial Tort Claim or Letter of Credit Right included in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonCollateral.
Appears in 1 contract
Security Interest. (a) As collateral security for the prompt payment or performance, as the case may be, and performance in full when due of the Indebtedness (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor Debtor hereby pledges and grants assigns (as collateral) to the Collateral Agent, its successors and permitted assigns, for grants the ratable benefit of the Secured Parties, Agent a continuing lien on and security interest in in, all of such Debtor's right, title or and interest in or and to any and all of the following assets and properties in each case following, whether tangible or intangible, wherever located, and now owned or at any time hereafter arising or acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest and wherever located (but excluding any Excluded Collateral, collectively, the “"Collateral”"):
(ia) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iiib) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vic) all General Intangibles;
(viid) all GoodsEquipment;
(viiie) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(xf) all Investment PropertyDocuments;
(xig) all Intellectual PropertyInstruments;
(xiih) all Pledged CollateralDeposit Accounts;
(xiiii) all Records computer records ("Computer Records") and all books and records pertaining Software, whether relating to the Collateral;
(xiv) all letters foregoing Collateral or otherwise, but in the case of credit under which such Grantor is Software, subject to the beneficiary rights of any non-affiliated licensee of software and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all any cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accountscollateral, deposit account or investment account established or maintained hereunder, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantorwithout limitation under Section 6.3 hereof; and
(xixj) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offspringsin cash or otherwise, rents profits and products of any of the property described in the foregoing clauses (a) through (i) and all collateral security liens, security, rights, remedies and guarantees given by any person claims of such Debtor with respect thereto; provided, however, that "Collateral" shall not include rights under or with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement General Intangible, license, permit or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only authorization to the extent that any such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 General Intangible, license, permit or Rule 3-16 of Regulation S-X under the Securities Act (authorization, by its terms or any other by law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with prohibits the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulationassignment of, or any other lawthe granting of a security interest in, rule the rights of a grantor thereunder or regulation is adopted, which would require) the filing with the SEC (be invalid or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (unenforceable upon any such Equity Interests assignment or other securities, “Excluded Note Collateral”)grant. In such event, the Security Documents may be amended or modified, without the consent The pledge and grant of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority a security interests interest in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests Proceeds shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically not be deemed to be a part give the applicable Debtor any right to dispose of any of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only andCollateral, except as may otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, be permitted herein or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonCredit Agreement.
Appears in 1 contract
Security Interest. (a) 3.1 As security for the prompt, complete and indefeasible payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and Borrowers grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Lender a security interest in all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and Borrowers’ personal property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in acquired, including the future may acquire any right, title or interest following (but excluding any Excluded Collateral, collectively, the “Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles (other than Intellectual Property); (e) Inventory; (f) Investment Property (but excluding thirty-five percent (35%) of the capital stock of any foreign Subsidiary if to include such capital stock as Collateral would cause Parent adverse tax consequences under Internal Revenue Section 956 (or any successor statute); (g) Deposit Accounts; (h) Cash; (i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments Goods; and other tangible and intangible personal property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorBorrowers whether now or hereafter owned or existing, leased, consigned by, or acquired by, any Borrower and wherever located; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of any each of the foregoing foregoing; provided, however, that the Collateral shall include all Accounts and all collateral security and guarantees given by any person General Intangibles (other than Intellectual Property Licenses which prohibit such assignment (unless such provision would be rendered ineffective with respect to any the creation of the foregoing.
security interest hereunder pursuant to Sections 9-406 or 9-408 of the UCC (bor any successor provision or provisions) Notwithstanding anything to the contrary in this Agreement of any relevant jurisdiction or any other Senior Secured Note Documentapplicable law (including the Bankruptcy Code) or principles of equity)) that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for Intellectual Property (the benefit of Senior Secured Note Holders only “Rights to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agencyPayment”). In Notwithstanding the event foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that Rule 3-10 or Rule 3-16 of Regulation S-X under a security interest in the Securities Act requires or underlying Intellectual Property is amended, modified or interpreted by necessary to have a security interest in the SEC Rights to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guaranteesPayment, then the Equity Interests Collateral shall automatically, and other securities of such subsidiary shall automatically be deemed not to be part effective as of the Collateral securing date of this Agreement, include the Note Obligations in favor of the Note Secured Parties (but only Intellectual Property to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent permit perfection of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority Lender’s security interests interest in the shares of Equity Interests and other securities that are so deemed Rights to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsPayment.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the To secure payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) performance of the Obligations (other than contingent obligationsas defined below), each Grantor hereby pledges and Debtor grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Party a security interest in all right, title or interest in or to any and all of the following assets and properties property described below in each case whether tangible which Debtor has or intangibleacquires an interest, wherever located, and whether now owned or at hereafter acquired, ("Collateral"):
(a) All of the silver coins recovered by Debtor from the shipwreck known as "SS Republic" as specifically listed on Schedule 1 attached hereto, together with additions (the "Coins");
(b) All accounts, contract rights, documents, chattel paper (including electronic chattel paper), instruments, and general intangibles, and all returned or repossessed goods arising from sales of the Coins (the "Accounts");
(c) All proceeds of insurance policies insuring any time hereafter acquired of the Coins against loss (whether or not the Secured Party is a loss payee or additional insured thereof) and any indemnity, warranty or guaranty payable by such Grantor reason of loss or damage to or otherwise with respect to the Coins;
(d) All salvage rights of the Debtor with respect to its services in recovering the Coins;
(e) All equipment, fixtures, and inventory (including all goods held for sale, lease or demonstration or to be furnished under contracts of service, goods leased to others, trade-ins and repossessions, raw materials, work in process and materials or supplies used or consumed in Debtor's business), including all spare and repair parts, special tools, equipment and replacements for any of the foregoing, and any software embedded therein or related thereto;
(f) All financial assets, investment property, securities (whether certificated or uncertificated, and including investment company securities), security entitlements, securities accounts, commodity contracts, and commodity accounts, including all substitutions and additions thereto, and all dividends, distributions and sums distributable or payable from, upon or in which respect of such Grantor now has or at any time in the future may acquire any right, title or interest property;
(but excluding any Excluded Collateral, collectively, the “Collateral”):g) All commercial tort claims;
(h) All deposit accounts of Debtor maintained by Secured Party;
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of All letter-of-credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantorrights; and
(xixj) to All supporting obligations that support the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products payment or performance of any of the foregoing ("Supporting Obligations");
(k) All additions and accessions to, all proceeds, products, offspring and profits of, and all collateral security rights and guarantees given by any person with respect to privileges incident to, any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Security Agreement (Odyssey Marine Exploration Inc)
Security Interest. (a) As security for the To secure payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Borrower hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Party a continuing security interest in and to all rightof Borrower’s rights, title or and interest in or and to any and all of the following its property of any kind or description, tangible and intangible personal property, assets and properties in each case whether tangible or intangiblerights, wherever located, and whether now existing or owned or at any time hereafter arising or acquired by such Grantor or in which such Grantor now has or at any time in and the future may acquire any rightproceeds and products therefrom, title or interest including, without limitation, the following (but excluding any Excluded Collateral, collectively, the “Collateral”):
(ia) All Accounts, including, without limitation, accounts receivable, insurance receivables and prepaid premiums, if any, and all AccountsGoods whose sale, lease or other disposition has given rise to Accounts and have been returned to, or repossessed or stopped in transit by, Borrower, or rejected or refused by an Account Debtor;
(iib) the Cash Collateral Account (as defined in the Revolving All Chattel Paper, including, without limitation, Electronic Chattel Paper and liens and lien rights on customer property; Documents; Instruments, including, without limitation, Promissory Notes; Letter of Credit Agreement) Rights and all cashproceeds of letters of credit; Supporting Obligations; Liabilities secured by real estate; Commercial Tort Claims and General Intangibles, securitiesincluding, Instruments without limitation, Payment Intangibles and other property deposited or required to be deposited thereinSoftware;
(iiic) all Chattel PaperAll Inventory, including, without limitation, raw materials, work in process, materials and finished goods leased by Borrower as lessor or held for sale or lease or furnished or to be furnished under contracts of service or used or consumed in a business;
(ivd) all Documents;
(v) All Goods and all Equipment;
(vie) all General IntangiblesAll Securities, Investment Property and Deposit Accounts;
(viif) all GoodsAll products of, additions and accessions to, and substitutions, betterments and replacements for the foregoing property;
(viiig) all Instruments, including all Pledged SecuritiesAll sums at any time credited by or due from Secured Party to Borrower;
(ixh) all Inventory All property in which Borrower has an interest now or documents at any time hereafter coming into the possession or under the control of title, customs receipts, insurance certificates, shipping documents and other written materials related Secured Party or in transit by mail or carrier to or from Secured Party or in possession of or under the purchase or import control of any Inventory;
third party acting on Secured Party’s behalf without regard to whether Secured Party received the same in pledge, for safekeeping, as agent for collection or transmission or otherwise or whether Secured Party has conditionally released the same (x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accountsexcluding, including all cashnevertheless, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal foregoing property whatsoever of such GrantorBorrower which now or any time hereafter is in possession or control of Secured Party under any written trust agreement wherein Secured Party is trustee and Borrower is trustor); and
(xixi) to the extent not otherwise included, all All Proceeds (whether Cash Proceeds or Noncash Proceeds, all accessions to and substitutions and replacements for and products of any and all ) of the foregoing and all offspringsproperty, rents profits and products including, without limitation, proceeds of any insurance payable by reason of loss or damage to the foregoing property and all collateral security of eminent domain or condemnation awards. Terms used and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary not otherwise defined in this Agreement or any other Senior Secured Note Document, shall have the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for meaning given such terms in the benefit of Senior Secured Note Holders only to Michigan Uniform Commercial Code (the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency“UCC”). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements meaning of any subsidiary term defined in the UCC is amended after the date of Holdings due to this Agreement, the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities meaning of such subsidiary term as used in this Agreement shall automatically be deemed not to be part that of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that more encompassing of: (i) indicate the Collateral as “all assets” of such Grantor or words of similar effectdefinition contained in the UCC prior to the amendment, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) definition contained in the case of a financing statement filed as a fixture filing, a sufficient description of UCC after the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borroweramendment.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Security Agreement (Health Enhancement Products Inc)
Security Interest. (a) As security for the To secure prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) and performance of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Borrower hereby confirms the pledge and grant to the Collateral Agentpledges, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges transfers and grants to the Collateral AgentSecured Party a perfected, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a first priority continuing security interest in all rightproperties, title or interest in or to any and all of the following assets and properties in rights of each case whether tangible Borrower, subject to no other liens or intangibleencumbrances, wherever located, and now owned or at any time hereafter acquired by such Grantor Borrower or in which such Grantor the Borrower now has or at any time in the future may acquire any right, title or interest interest, wherever located or situated (but excluding any Excluded hereinafter, collectively called the "Collateral, collectively"). Without limitation of the foregoing, the “Collateral”):Collateral includes the following:
(i) all Accounts;
; (ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
As-Extracted Collateral; (iii) all Chattel Paper;
; (iv) all Commercial Tort Claims; (v) all Consignments; (vi) all Contracts; (vii) all Copyrights; (viii) all Copyright Licenses; (ix) all Deposit Accounts; (x) all Documents;
(vxi) all Electronic Chattel Paper; (xii) all Encumbrances; (xiii) all Money; (xiv) all Equipment;
; (vixv) all Fixtures; (xvi) all Goods (xvii) all General Intangibles; (xviii) all Health-Care-Insurance Receivables;
(vii) all Goods;
(viiixxix) all Instruments, including all Pledged Securities;
; (ixxx) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
; (xxxi) all Investment Property;
; (xixxii) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Letter-of-Credit Rights;
(xvxxiii) all Letters of Credit; (xxiv) all Patents; (xxv) all Patent Licenses; (xxvi) all Payment Intangibles; (xxvii) all Promissory Notes; (xxviii) all Software; (xxvix) all Supporting Obligations;
; (xvixxx) all cash and cash equivalents;
Tangible Chattel Paper; (xviixxxi) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
Trademarks; (xviiixxxii) all other personal property whatsoever of such GrantorTrademark Licenses; and
(xixxxxiii) all Vehicles; and (xxxiv) to the extent not otherwise included, all ProceedsProceeds (including condemnation proceeds), all accessions to Accessions, attachments and substitutions additions thereto and all substitutions, renewals and replacements for therefore and rental payments and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to Borrowers expressly acknowledge that the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests security interest granted hereunder will remain as security for payment and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit performance of the Loan Secured Parties in accordance with the terms Obligations, whether now existing or which may hereafter be incurred by future advances, or otherwise. The notice of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue continuing grant of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company security interest or a partnership interest pursuant hereto, this Agreement therefore shall not be construed required to be stated on the face of any document representing any such Loan Obligations, nor otherwise identify it as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Personbeing secured hereby.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, performance in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, including each Guarantee of the Obligations, each Grantor hereby confirms the pledge and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a continuing security interest (the “Security Interest”) in all of its right, title or and interest in or to any and all of the following assets and properties in each case properties, whether tangible now owned, or intangible, wherever located, and now owned or at any time hereafter acquired by or arising in favor of such Grantor or in which such Grantor now has or at any time in the future may acquire any rightGrantor, title or interest and regardless of where located (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDeposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles;
(viii) all InstrumentsIntellectual Property, including all Pledged Securitiesclaims for, and rights to ▇▇▇ for, past, present or future infringements, misappropriations or other violations of Intellectual Property, and all income, royalties, damages and payments now or hereafter due or payable with respect to Intellectual Property;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryGoods;
(x) all Investment PropertyInstruments;
(xi) all Intellectual PropertyInventory, including goods that are returned, repossessed, stopped in transit or which are otherwise owned by any Grantor;
(xii) all Investment Property, Pledged Equity and other Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters Letters of credit under which such Grantor is the beneficiary Credit and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all Money, cash and cash equivalents;
(xviixvi) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in Commercial Tort Claims described on Schedule 10 to the Perfection Certificate or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorPerfection Certificate Supplement; and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.;
Appears in 1 contract
Sources: Credit Agreement (Ugi Corp /Pa/)
Security Interest. (a) 1.1 As security for the prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of such ▇▇▇▇▇▇▇▇’s right, title title, and interest in, to and under all of such ▇▇▇▇▇▇▇▇’s personal property and other assets including without limitation the following (except as set forth herein) whether now owned or interest in or to any hereafter acquired (collectively, the “UCC Collateral”): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles (other than Company IP); (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) Goods; and all other tangible and intangible personal property of the following assets Borrower whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and properties in each case whether tangible or intangible, wherever located, and now any of Borrower’s property in the possession or under the control of Agent (in each case other than Company IP); and, to the extent not otherwise included, all Proceeds of each of the foregoing and all accessions to, substitutions and replacements for, and rents, profits and products of each of the foregoing; provided, however, that the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the Company IP (the “Rights to Payment”). Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy ny-2659060 Court) holds that a security interest in the underlying Company IP is necessary to have a security interest in the Rights to Payment, then the UCC Collateral shall automatically, and effective as of the date of this Agreement, include the Company IP to the extent necessary to permit perfection of Agent’s security interest in the Rights to Payment.
1.2 Notwithstanding the broad grant of the security interest set forth in Section 3.1, above, the term “UCC Collateral” shall not include (a) any governmental licenses or state or local charters and authorizations to the extent a security interest is prohibited or restricted by any applicable law (except to the extent such prohibition or restriction is ineffective under the UCC or other applicable law), but only for so long as such prohibition or restriction exists, (b) any property owned by any Borrower that is subject to a purchase money Lien or at any time hereafter acquired a capital lease or similar arrangement permitted by this Agreement to the extent that the obligation pursuant to which such Grantor Lien is granted (or in which the document, instrument or agreement providing for such Grantor now has capital lease) prohibits (or at causes a default thereunder), invalidates such obligation, document, instrument or agreement or provides a right of termination in favor of any time in other party thereto (other than the future may acquire applicable Borrower and its Affiliates) by granting, any right, title other Lien or interest on such property (but excluding only to the extent (i) such prohibition on transfer is enforceable under applicable law, including, without limitation, Sections 9-406, 9-407 and 9-408 of the UCC and (ii) no consent or waiver has been obtained that would permit Agent’s security interest or lien to attach notwithstanding the prohibition or restriction on such property subject to such purchase money Lien or capital lease), (c) nonassignable licenses or contracts, which by their terms require the consent of the licensor thereof or another party (but only to the extent (i) such prohibition on transfer is enforceable under applicable law, including, without limitation, Sections 9-406, 9-407 and 9-408 of the UCC and (ii) no consent or waiver has been obtained that would permit Agent’s security interest or lien to attach notwithstanding the prohibition or restriction on the pledge of such lease, license or agreement), (d) any property to the extent that Agent, in its sole discretion, determines that the cost and/or burden of obtaining a security interest in such property outweigh the benefit to the Agent and the Lenders and (e) any Excluded Account. For the avoidance of doubt, the foregoing exclusions of clauses (b) and (c) shall in no way be construed to limit, impair, or otherwise affect any of Agent’s continuing security interests in and liens upon any rights or interests of any Borrower in or to (x) monies due or to become due under or in connection with any described lease, license or agreement or the property subject to such purchase money lien or capital lease, or (y) any proceeds from the sale, license, lease, or other dispositions of any such ease, license or agreement or the property subject to such purchase money lien or capital lease.
1.3 Parent and Replimune UK have entered into the English Security Documents pursuant to which they have granted security interests on, to and under the collateral described therein (such collateral, with the UCC Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person ). Solely with respect to any Replimune UK, in the event of the foregoing.
(b) Notwithstanding anything to the contrary in a conflict between Section 3.1 of this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In English Debenture, the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess terms of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests English Debenture shall govern and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationscontrol.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Loan and Security Agreement (Replimune Group, Inc.)
Security Interest. (a) As collateral security for the payment or performance, as the case may be, performance in full when due (whether at stated maturity, by acceleration or otherwise) of all the obligations of the Loan Obligations Company and CC AT under this Agreement until the earlier of (other than contingent obligations)1) the Closing, each Grantor hereby confirms (2) in the pledge event of termination of this Agreement under Article VIII herein, the Company’s and grant to the Collateral Agent, its successors and permitted assigns CC AT’s repayment of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured PartiesDeposit owed to Buyer, and as security (3) termination of this Agreement for failure to pay the payment or performance, as Deposit under Section 2.5(c)(i)):
(i) the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor Company hereby pledges and assigns to Buyer, and grants to the Collateral Agent, its successors Buyer a Lien on and permitted assigns, for the ratable benefit of the Secured Parties, a continuing security interest in all rightin, title or interest in or and a right to set off against, any and all of the Company’s right, title and interest in and to all of the following assets tangible and properties in each case whether tangible or intangibleintangible personal property, wherever located, and whether now existing or hereafter arising or acquired from time to time (collectively, the “Company Collateral”): all cash, currency, and cash equivalents, all Accounts, all Inventory, all Contract rights, all Equipment, all Goods, all Instruments (including promissory notes), all Chattel Paper (including Electronic Chattel Paper and Tangible Chattel Paper), all Fixtures, all Commercial Tort Claims (including Proceedings), all Deposit Accounts, all Documents, all General Intangibles, all Permits, all Intellectual Property and software, owned or at any time hereafter acquired controlled by such Grantor the Company as well as all licenses to third party Intellectual Property and software held by the Company, all Investment Property, all Payment Intangibles, all Securities Accounts and Commodities Accounts, all Supporting Obligations, all books and records related to the foregoing, all Accessions, and to the extent not otherwise included above, all Proceeds (including insurance Proceeds), products, accessions, rents and profits of or in which such Grantor now has or at respect of any time in of the future may acquire foregoing; and
(ii) CC AT hereby pledges and assigns to Buyer, and grants to Buyer a Lien on and continuing security interest in, and a right to set off against any and all of CC AT’s right, title and interest in and to all of the following, wherever located, and whether now existing or interest hereafter arising or acquired from time to time (but excluding any Excluded collectively, the “Pledged Collateral”; together with the Company Collateral, collectively, the “Collateral”):
(i) ): all Accounts;
(ii) the Cash Collateral Account (as defined Equity owned or hereafter acquired by CC AT in the Revolving Credit Agreement) Company including, without limitation, the certificates representing such Equity, if certificated, any interest of CC AT on the books and records of the Company, and any securities entitlements relating to the Equity, all dividends, distributions, cash, securitieswarrants, Instruments rights, options, instruments, securities and other property deposited or required proceeds from time to be deposited therein;
(iii) time received, receivable or otherwise distributed in respect of or in exchange for any of or all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instrumentsof the Equity and any other warrant, including all Pledged Securities;
(ix) all Inventory right or documents of title, customs receipts, insurance certificates, shipping documents and option or other written materials related agreement to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in acquire any of the foregoing;
(xviii) , all management rights, all voting rights, any interest in any capital account of CC AT in the Company on account of the Equity, all rights as and to become a member or stockholder of the Company as a holder of such Equity, all rights of CC AT under any shareholder, equityholder or voting trust agreement or similar agreement relating to the Equity, all of CCAT’s right, title and interest relating to the Equity, as a member, unit holder, or manager, to any and all assets or properties of Company, all other personal rights, powers, privileges, interests, claims and other property whatsoever in any manner arising out of such Grantor; and
(xix) or relating to any of the foregoing, all Accessions, and to the extent not otherwise includedincluded above, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offspringsproducts, accessions, rents and profits and products of any or in respect of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(biii) Notwithstanding anything to the contrary Capitalized terms used in this Section 5.7 that are not otherwise defined in this Agreement or any other Senior Secured Note Documentshall have the meanings ascribed to such terms in the Uniform Commercial Code as in effect from time to time in the State of New York (the “UCC”), the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that except as such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees term may be used in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed connection with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part perfection of the Collateral securing and then the Note Obligations applicable jurisdiction with respect to such affected Collateral shall apply.
(iv) This Agreement creates a valid Lien and security interest in favor of the Note Secured Parties Buyer in the (but only to the extent necessary to not be subject to such requirementA) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent Company Collateral of the Note TrusteeCompany and (b) the Pledged Collateral of CC AT and, the when properly perfected by filing, shall constitute a valid and perfected, Lien and security interest in such Collateral Agent, any Senior Secured Note Holder (including all uncertificated equity consisting of partnership or any holder limited liability company interests that do not constitute Securities).
(b) Each of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests Company and CC AT acknowledge and agree that there are no restrictions in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, its organizational documents or any other law, rule or regulation is adopted, agreement which would permitlimit or restrict (i) such subsidiary’s Equity Interests the grant of a Lien and other securities security interest in the Collateral pursuant to secure this Agreement, (ii) the Senior Secured Notes and/or the related guarantees in excess perfection of the amount then pledged without Lien and security interest in the filing with Collateral or (iii) the SEC exercise of any of Buyer’s remedies (or any other governmental agency) including all voting and management rights in respect of separate financial statements the Pledged Collateral), in respect of such subsidiary, then the Equity Interests Lien and other securities of such subsidiary shall automatically be deemed to be a part of security interest in the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsas contemplated by this Agreement.
(c) Each Grantor The Company and CC AT, as applicable shall cause the and Lien security interests granted under this Section 5.7 to be perfected in Buyer as of the date hereof and continuing until the earlier of (1) the Closing, (2) the return of the Deposit in full to the Buyer, and (3) termination of this Agreement for failure to pay the Deposit under Section 2.5(c)(i). As of the date hereof CC AT shall deliver to Buyer stock certificates evidencing the Equity, if certificated, duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank. The Company hereby irrevocably authorizes the Collateral Agent Buyer at any time and from time to time to file in any relevant jurisdiction applicable filing office prescribed, any financing statements (including fixture filingscontinuation statements) or amendments thereof or supplements thereto or other forms or instruments, or similar filing (i) describing the Company Collateral in the same manner as described herein or contains an indication or description of the Company Collateral that describes such property in any other manner as the Buyer may determine, including without limitation, “all personal property, whether now owned or hereafter acquired”, or “all assets, whether now owned or hereafter acquired” or words of similar effect (or as being of equal or lesser scope or with greater detail) or (ii) that contains any information required by the UCC as in effect from time to time as adopted by any relevant jurisdiction for the sufficiency or filing office acceptance. CC AT hereby irrevocably authorizes Buyer at any time and from time to time to file in any applicable filing office prescribed, any financing statements (including continuation statements) or amendments thereof or supplements thereto, or other forms or instruments or similar filing (A) describing the Pledged Collateral in the same manner as described herein or contains an indication or description of the Pledged Collateral that describes such property in any other manner as the Buyer may determine or (B) that contains any information required by the UCC as in effect from time to time as adopted by any relevant jurisdiction for the sufficiency or filing office acceptance.
(d) Automatically upon the earlier of (1) the Closing, (2) the return of the Deposit in full to the Buyer, and (3) termination of this Agreement for failure to pay the Deposit under Section 2.5(c)(i), all security interests, liens, mortgages, pledges, charges and other encumbrances granted to the Buyer in connection with this Agreement shall be automatically released and terminated without any further action by any Person; provided, however, in the event that the security interests are released pursuant to this Section 5.7(d) in connection with the Closing, this release shall only apply with respect to the security interests granted by CC AT. At the expense of the Buyer, the Buyer will promptly upon such termination deliver any such UCC-3 termination statements or other release documents as are reasonably required to release the security interests and liens previously filed by the Buyer or on the Buyer’s behalf under this Agreement. Upon such automatic release and termination of the security interests and liens, the Buyer hereby authorizes the Member (or any designee of the Member) to file those certain UCC-3 termination statements and any other lien release or terminations instruments reasonably necessary to release the security interests and liens previously filed by the Buyer or on the Buyer’s behalf under this Agreement.
(e) CC AT has caused the Company to amend or to otherwise modify its organizational documents, books, records, and related agreements, documents, and instruments, as applicable, to reflect the rights and interests of the Buyer hereunder, and to the extent required to enable and empower the Buyer to exercise and enforce its rights and remedies hereunder in respect of the Pledged Collateral. The Company, as issuer of the Equity, has by execution of this Agreement, acknowledged, consented and agreed that the Company may, and the other Members and the board of directors of the Company, on behalf of Company, has by written consent authorized CC AT to, g▇▇▇▇ ▇ ▇▇▇▇ and security interest in the Pledged Collateral pursuant to this Agreement, together with all rights accompanying such Lien and security interest as provided in this Agreement and under applicable Law.
(f) The Company and CC AT further agree upon the request of B▇▇▇▇, to take any and all other actions as Buyer may determine to be reasonably necessary for the attachment, perfection and first priority of Buyer’s security interest in any and all of the Collateral, including without limitation, (i) executing and delivering and where appropriate filing financing statements and amendments relating thereto under the UCC to the extent, if any, that the Company’s or CC AT’s signature thereon is required therefor and (ii) complying with any provision of any statute, regulation or treaty as to any Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of Buyer to enforce, its Lien and security interest in such Collateral.
(g) The Company and CC AT acknowledge and agree that the Buyer shall have in addition to the rights and remedies provided herein, in any other document related to the transactions described herein, or by applicable Law, (including, but not limited to, levy of attachment, garnishment and the rights and remedies set forth in the UCC of the jurisdiction applicable to the affected Collateral), the rights and remedies of a secured party under the UCC (regardless of whether the UCC is the law of the jurisdiction where the rights and remedies are asserted and regardless of whether the UCC applies to the affected Collateral), and further, may, with or without judicial process, notice, demand or the aid and assistance of others, all of which are irrevocably waived by the Company and CC AT, take any action with respect to the Collateral to protect its Lien and security interest in such Collateral. In order to permit the Buyer to enforce its Lien and security interest in the Pledged Collateral, CC AT hereby grants to Buyer a proxy to exercise all voting rights with respect to the Equity that CC AT now owns or any part thereof hereafter acquires. This proxy is valid and amendments thereto that (i) indicate irrevocable. This proxy runs with the Collateral as “Equity and binds all assets” future owners of such Grantor or words of similar effectthe Equity. This proxy also runs with the Lien and security interest granted herein, and (ii) contain the information required may be exercised by Article 9 any assignee of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrowersecurity interest.
(dh) The Collateral Agent is further authorized to file with Notwithstanding the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant heretoforegoing, this Agreement shall not continue to be construed effective or shall be automatically reinstated, as creating the case may be, if at all or any of the obligations under this Agreement or the transactions contemplated herein, in whole or in part, are rescinded or must otherwise be restored for any reason, including as a partnership preference, fraudulent conveyance, or joint venture among otherwise under any debtor relief Law. CC AT and Company acknowledge and agree that in the Collateral Agentevent all or any part of the obligations under this Agreement or the transactions contemplated herein are rescinded or must be restored for any reason, all reasonable costs and expenses (including, without limitation, any other Secured Partyreasonable legal fees and disbursements), any Grantor and/or any other Personincurred by the Buyer in defending and enforcing such reinstatement shall be deemed to be included as a part of the obligations secured by the Collateral.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Pari Passu Obligations (other than contingent obligationsany Pari Passu Obligations of ParentUDW), each Borrower Subsidiary Grantor hereby confirms the pledge and grant grants to the Pari Passu Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the "Security Interest") in all of its right, title or and interest in or in, to and under any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Borrower Subsidiary Grantor or in in, to or under which such Borrower Subsidiary Grantor now has or at any time in the future hereafter may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “"Article 9 Collateral”"):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all EquipmentGeneral Intangibles, including all Intellectual Property;
(vi) all General IntangiblesInstruments;
(vii) all other Goods;
(viii) all Instruments, including all Pledged SecuritiesInvestment Property;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any InventoryLetter-of-Credit rights;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxi) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing; provided, however, that the Security Interest shall not cover, and the term "Article 9 Collateral" shall not include, any Excluded Property.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part Each of the Collateral securing Borrower Subsidiary Grantors hereby irrevocably authorizes the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Borrower Subsidiary Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Borrower Subsidiary Grantor is an organization, the type of organization and any organizational identification number issued to such Borrower Subsidiary Grantor and (yB) in the case of a financing statement filed as a fixture filingfiling or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cut, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor of the Borrower Subsidiary Grantors agrees to provide such information to the Pari Passu Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary or promptly upon request. Each Grantor also ratifies its authorization for the purpose of perfectingPari Passu Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. The Pari Passu Collateral Agent shall not be responsible for and makes no representation as to the existence, confirminggenuineness, continuing, enforcing value or protecting the Security Interest granted by each Grantor, without the signature protection of any GrantorCollateral, and naming for the legality, effectiveness or sufficiency of any Grantor Collateral Agreement, or for the Grantors creation, perfection, priority, sufficiency or protection of any liens securing the Pari Passu Obligations. For the avoidance of doubt, nothing herein shall require the Pari Passu Collateral Agent to file financing statements or continuation statements or be responsible for maintaining the security interests purported to be created as debtors described herein (except for the safe custody of any Collateral in its possession and the Collateral Agent as secured party. The Collateral Agent agrees, upon request accounting for moneys actually received by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrowerit hereunder or under any other Pari Passu Document).
(ec) The Security Interest is and the security interest granted pursuant to Article II are granted as security only and, except as otherwise required by applicable law, and shall not subject the Pari Passu Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained .
(d) Notwithstanding anything herein to the contrary, in this Agreement no event shall the security interest granted hereunder attach to any contract or agreement (other than pursuant to an Earnings Assignment or an Insurance Assignment) to which a Borrower Subsidiary Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (x) the unenforceability of any right of the Borrower Subsidiary Grantor therein or (y) a breach or termination pursuant to the terms of, or a default under, any such contract or agreement (other than to the extent that any such term would be construed rendered ineffective pursuant to make Sections 9-406, 9-407, 9-408 or 9-409 of the Collateral Agent New York UCC or any other Secured Party liable applicable law or principles of equity); provided, however, that such security interest shall attach immediately at such time as a member the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of any limited liability company such contract or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to agreement that does not result in the following sentence) shall have any of the duties, obligations consequences specified in clause (x) or liabilities (y) of a member this paragraph (d) including any Proceeds of any limited liability company such contract or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Personagreement.
Appears in 1 contract
Security Interest. (a) As collateral security for the payment all of Client’s indebtedness and obligations to Supplier, whether matured or performanceunmatured, as the case may beabsolute or contingent, in full when due now existing or hereafter arising (whether at stated maturityincluding, without limitation, under indemnity or reimbursement agreements or by acceleration or otherwise) of the Loan Obligations (other than contingent obligationssubrogation), each Grantor and howsoever acquired by Supplier, whether arising directly between Client and Supplier or acquired by Supplier by assignment, including, without limitation, all obligations of Client to Supplier hereunder and under all other Supplier Documents, Client hereby confirms the pledge irrevocably assigns and grant transfers to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured PartiesSupplier, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Supplier a security interest in in, all rightof Client’s personal property and fixtures, whether now owned or hereafter acquired, whether now existing or hereafter created, and wherever located, including without limitation all of Client’s rights, title or interest and interests in or and to the following types of property: (i) accounts; (ii) cash and currency; (iii) chattel paper; (iv) contracts and contract rights, including without limitation all rights, title and interests in, to and under any and all of factoring agreements, including without limitation the following assets and properties in each case whether tangible or intangibleFactoring Agreement, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) registered United States copyrights, all Equipment;
registrations and recordings thereof, and all applications in connection therewith (including, without limitation, registrations, recordings and applications in the United States Copyright Office), all renewals thereof and all licenses with respect thereto, (vi) all General Intangibles;
deposit accounts; (vii) all Goods;
documents; (viii) all Instruments, including all Pledged Securities;
equipment; (ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
financial assets; (x) all Investment Property;
fixtures; (xi) all Intellectual Property;
general intangibles; (xii) all Pledged Collateral;
goods; (xiii) instruments; (xiv) inventory; (xv) investment property; (xvi) letter-of-credit rights; (xvii) letters patent of the United States or any other country and all Records reissues and extensions thereof, applications for letters patent of the United States or any other country and all divisions, continuations and continuations-in-part thereof, and agreements, whether written or oral, providing for the grant by or to you of any right to manufacture, use or sell any invention covered by a letter patent; (xviii) securities accounts and securities entitlements; (xix) software; (xx) supporting obligations; (xxi) trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, logos and other source or business identifiers, and the goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any state thereof or any other country or any political subdivision thereof, or otherwise, all renewals thereof, and all agreements, written or oral, providing for the grant by or to you of any right to use any such name, style, m▇▇▇, logo or other source or business identifier; (xxii) other personal property of whatever type, (xxiii) all books and records (including, without limitation, customer lists, credit files, computer programs, printouts and other computer materials and records) pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
, and (xviiixxiv) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, accessions and all Proceeds, all accessions to and substitutions and replacements for proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including each Guaranty, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;Chattel Paper; 95959845_3
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(vi) all Instruments;
(vii) all GoodsInventory;
(viii) all Instruments, including all Pledged SecuritiesIntellectual Property Collateral;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xix) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xi) all Goods and Fixtures;
(xii) all Letter-of-Credit Rights;
(xiii) all Commercial Tort Claims described on Schedule III from time to time;
(xiv) the Cash Collateral Account (and all letters of credit under which such Grantor is the beneficiary cash, securities and Letter of Credit Rightsother investments deposited therein);
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit Security Entitlements in any or all of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note DocumentAgreement, the Equity Interests Article 9 Collateral shall not include any, and other securities of any direct or indirect subsidiary of Holdings that are owned by any no Security Interest shall be granted in any, Excluded Assets.
(b) Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make 95959845_3
(d) Each Grantor hereby further authorizes the Collateral Agent to file filings with the United States Patent and Trademark Office or United States Copyright Office (or any other Secured Party liable as a member of any limited liability company or as a partner of any partnershipsuccessor office), neither including the Collateral Agent nor any other Secured Party by virtue of this Trademark Security Agreement, Copyright Security Agreement, and Patent Security Agreement or otherwise (except other documents as referred to in may be necessary or advisable for the following sentence) shall have any purpose of perfecting, confirming, continuing, enforcing or protecting the dutiessecurity interest granted by such Grantor hereunder, obligations or liabilities without the signature of a member of any limited liability company or such Grantor, and naming such Grantor, as a partner in any partnership. The parties hereto expressly agree thatdebtor, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among and the Collateral Agent, any other Secured Party, any Grantor and/or any other Personas secured party.
Appears in 1 contract
Security Interest. (a) As security for the payment or performanceTenant hereby pledges, as the case may betransfers and assigns to Landlord, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral AgentLandlord, its successors and permitted assigns, as additional security for the ratable benefit of the Secured PartiesTenant's obligations under this Lease, a continuing perfected first priority security interest in and to, and a first lien upon: (i) the Accounts and Local Accounts owned by it from time to time, now existing or hereafter arising, and all amounts which may from time to time be on deposit in each of such Accounts and Local Accounts (such first lien is subject to the Lien on Membership Contract Receivables arising under the Working Capital Loan Documents); (ii) all of Tenant's right, title or and interest in or and to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments property or rights transferred to or deposited in each Account and other property deposited or required each Local Account from time to be deposited therein;
time; (iii) all Chattel Paper;
certificates and instruments, if any, from time to time representing or evidencing the Accounts or Local Accounts or any amount on deposit in any thereof, or any value received as a consequence of possession thereof, including all interest, dividends, cash, instruments and other property from time to time received or otherwise distributed in respect of, or in exchange for, any or all of such Accounts or Local Accounts; (iv) all Documents;
monies, chattel paper, checks, notes, bills of exchange, negotiable instruments, documents of title, money orders, commercial paper, and other security instruments, documents, deposits and credits from time to time in the possession of Landlord representing or evidencing such Accounts or Local Accounts; (v) all Equipment;
other property, held in, credited to or constituting part of any of the Accounts or Local Accounts; (vi) all General Intangibles;
earnings and investments held in any Account or Local Account in accordance with this Lease; and (vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise includeddescribed above, all Proceeds, all accessions to and substitutions and replacements for and products of any and all proceeds of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Documentcollectively, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency"ACCOUNT COLLATERAL"). In This Lease and the event that Rule 3-10 or Rule 3-16 pledge, assignment and grant of Regulation S-X security interest made hereby secures payment of all of Tenant's obligations under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties this Lease in accordance with the terms provisions set forth herein. This Lease shall be deemed a security agreement within the meaning of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien ObligationsUCC.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performanceEach Grantor, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, and performance in full when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations of such Grantor (other than contingent obligationsincluding, if such Grantor is a Guarantor, the Secured Obligations of such Grantor arising under the Guaranty), each Grantor hereby pledges to the Agent, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDeposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Propertybooks and records pertaining to the Article 9 Collateral;
(xii) all Pledged CollateralIntellectual Property;
(xiii) all Records Commercial Tort Claims listed on Schedule III and all books and records pertaining on any supplement thereto received by the Agent pursuant to the CollateralSection 3.03(h);
(xiv) all letters of letter-of-credit under which such Grantor is the beneficiary and Letter of Credit Rightsrights;
(xv) all Supporting Obligations;
(xvi) all cash and Money, cash, cash equivalents;
(xvii) all , Deposit Accounts, Securities Accounts and Securities Commodities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxvi) to the extent not otherwise included, all Proceeds, all accessions to products, accessions, rents and substitutions and replacements for and products profits of any and all of the foregoing and all offspringsSupporting Obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.
(b) Notwithstanding ; provided that, notwithstanding anything to the contrary in this Agreement, (A) this Agreement shall not constitute a grant of a security interest in (nor shall any pledge, grant or Security Interest attach to) any other Senior Secured Note DocumentExcluded Assets and (B) the Article 9 Collateral (and any defined term therein) shall not include any Excluded Assets; provided, the Equity Interests and other securities further, that this Agreement shall constitute a grant of a security interest in any Proceeds, substitutions or replacements of any direct Excluded Assets, and any Proceeds, substitutions or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements replacements of any subsidiary of Holdings due to Excluded Assets shall be included in “Article 9 Collateral” (and any defined term used therein), unless such Proceeds, substitutions or replacements would independently constitute Excluded Assets.
(b) Each Grantor hereby irrevocably authorizes the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto and continuations thereof that (i) indicate the Collateral as “all assetsassets of the debtor, whether now existing or hereafter arising” of such Grantor or words of similar effect, effect as being of an equal or lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained ; provided that the foregoing will not limit or otherwise affect the obligations and liabilities of the Grantors to the extent set forth herein and in this Agreement the other Loan Documents.
(d) In the case of any Registered Intellectual Property Collateral, each Grantor shall be construed execute and deliver to make the Agent Intellectual Property Security Agreements covering all such Registered Intellectual Property Collateral owned by such Grantor on the Closing Date or hereafter acquired.
(e) Upon notice to the Administrative Loan Party, the Agent is authorized to file with the USPTO or the USCO (or any successor office) such Intellectual Property Security Agreements (or supplements thereto) and such other Secured Party liable documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest in Registered Intellectual Property Collateral of each Grantor in which a member security interest has been granted by each Grantor, without the signature of any limited liability company or as a partner of any partnershipGrantor, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, and naming any Grantor and/or any other Personor the Grantor as debtors and the Agent as secured party.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Smart Sand, Inc.)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Obligations, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Administrative Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in all right, title or and interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor Pledgor or in which such Grantor Pledgor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel Papercash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all GoodsInstruments;
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and Investment Property (other written materials related to than the purchase or import of any InventoryPledged Securities);
(x) all Investment PropertyLetter-of-Credit Rights;
(xi) all Intellectual PropertyCommercial Tort Claims;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Article 9 Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixxiii) to the extent not otherwise included, all Proceedsproceeds, all accessions to and substitutions and replacements for Supporting Obligations and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) . Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle covered by a certificate of title or ownership, (b) any assets (including Equity Interests) with respect to which the Collateral and Guarantee Requirement or the other paragraphs of Section 5.10 of the Credit Agreement need not be satisfied by reason of Section 5.10(g) of the Credit Agreement, (c) any property excluded from the definition of Pledged Collateral by virtue of the proviso to Section 3.01 hereof, (d) any Letter of Credit Rights to the extent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose or (e) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party or any of its right, title or interest thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, contract or agreement, result in a breach of the terms of, or constitute a default under, any license, contract or agreement to which such Pledgor is a party (other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only than to the extent that any such Equity Interests and other securities can secure term would be rendered ineffective pursuant to Section 9-406, 9-408 or 9-409 of the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (New York UCC or any other lawapplicable law (including, rule without limitation, Title 11 of the United States Code) or regulation) requiring separate financial statements principles of such subsidiary to be filed with equity); provided, that immediately upon the SEC (ineffectiveness, lapse or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements termination of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trusteeprovision, the Collateral Agentshall include, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests Grantor shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be have granted a part of the Collateral securing the Note Obligations security interest in, all such rights and interests as if such provision had never been in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationseffect.
(cb) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Administrative Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xi) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (yii) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Administrative Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Pledgor agrees to provide such information to the Collateral Administrative Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor officeoffice or any similar office in any other country) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each GrantorPledgor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Administrative Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Goodman Holding CO)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, including the Guaranteed Obligations, each Grantor hereby confirms the pledge collaterally assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinChattel Paper;
(iii) all Chattel PaperDocuments;
(iv) all DocumentsEquipment;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Goods;
(vii) all Instruments; *** Confidential treatment has been requested for the portions marked by “***”. The confidential redacted portions have been omitted and filed separately with the Commission
(viii) all Instruments, including all Pledged SecuritiesInventory;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(x) all books and records pertaining to the Article 9 Collateral;
(xi) all Fixtures;
(xii) all Letters of Credit and Letter-of-Credit Rights;
(xiii) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is Commercial Tort Claims listed on Schedule II and on any supplement thereto received by the beneficiary and Letter of Credit RightsCollateral Agent pursuant to Section 3.03(g);
(xv) all Supporting Obligationscash and Cash Equivalents;
(xvi) all cash Deposit Accounts, Securities Accounts and cash equivalentsCommodities Accounts;
(xvii) all Deposit Accounts agreements, including, without limitation, each and Securities Accountsall of the Tax Equity Transaction Documents and all agreements or documents now existing or hereafter entered into by such Grantor relating to the acquisition, development, construction, supply, operation, maintenance or use and occupancy of any Project, including without limitation, all cashother instruments, marketable securitiesagreements and documents executed and delivered with respect to such agreements, securities entitlementsas the same may be amended, financial assets supplemented or otherwise modified from time to time in accordance with the terms thereof (the agreements described in this clause (xvii), collectively, the “Assigned Agreements”), including, without limitation, all rights of such Grantor (x) to receive moneys due and other funds held to become due under or pursuant to the Assigned Agreements, to compel performance and otherwise to exercise all remedies thereunder, including, without limitation, all rights to make determinations, to exercise any election or option contained in such agreements (including, but not limited to, termination thereof), to give or on deposit receive any notice or consent, to demand and receive any property which is the subject of any of the Assigned Agreements, to file any claims and generally to take any action which (in the opinion of the Collateral Agent) may be necessary or advisable in connection with any of the foregoing;
; (xviiiy) to receive the proceeds of any claim for damages arising out of or for breach of any Assigned Agreement and proceeds of any insurance, indemnity, warranty or guaranty with respect to the Assigned Agreements; and (z) to all other personal property whatsoever of such Grantor’s right, title and interest in, to and under the Assigned Agreements; and
(xixxviii) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for Proceeds and products of any and all of the foregoing and all offspringssupporting obligations, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing; provided, however, that notwithstanding any of the other provisions set forth in this Section 3.01, in no event shall the security interest granted under this Section 3.01 attach to any lease, license, contract, property rights or agreement to which any Grantor is a party or any *** Confidential treatment has been requested for the portions marked by “***”. The confidential redacted portions have been omitted and filed separately with the Commission of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor 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 pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law or principles of equity), provided however that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) above.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Each Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets” or “all personal property” of such Grantor or words of similar effect, effect as being of an equal or lesser scope or with greater detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written any reasonable request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.Article 9
Appears in 1 contract
Security Interest. (a) As security for To secure the payment or performanceSecured Obligations, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor Debtor hereby confirms the pledge and grant grants to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral AgreementSecured Party, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured PartiesCreditors, a continuing security interest in all rightin, title or interest in or to any a general lien upon, and all a right of set-off against, the following assets described Property of Debtor:
(a) all now existing and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any rightarising Accounts, title or interest Goods, General Intangibles, Payment Intangibles, Deposit Accounts, Securities Accounts, Chattel Paper (but excluding any Excluded Collateralincluding, collectivelywithout limitation, the “Collateral”):
(i) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iii) all Electronic Chattel Paper;
(iv) all ), Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all , Instruments, including all Pledged Securities;
(ix) all Inventory or documents of titleSoftware, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all , letters of credit under which such Grantor is the beneficiary and credit, Letter of Credit Rights, advices of credit, money, As-Extracted Collateral (including As Extracted Collateral from the Debtor's present and future operations, regardless of whether such mineral or gas interests are presently owned or hereafter acquired by Debtors), Commercial Tort Claims (as listed on a schedule attached hereto), Equipment, Inventory, Fixtures and Supporting Obligations, together with all products of and Accessions to any of the foregoing and all Proceeds of any of the foregoing (including, without limitation, all insurance policies and proceeds thereof);
(xvb) to the extent, if any, not included in clause (a) above, Debtor's present and future contracts, agreements, arrangements or understandings (i) for the sale, supply, provision or disposition of any natural gas, casinghead gas, all Supporting Obligations;
other hydrocarbons not defined as oil, carbon dioxide, and helium or other substances of a gaseous nature (xvi"Gas"), oil or other minerals by Debtor or any one or more of its agents, representatives, successors or assigns to any purchaser or acquirer thereof, and all products, replacements and proceeds thereof (including, without limitation, all Gas or oil sales contracts) all cash and cash equivalents;
(xviiii) all Deposit Accounts and Securities Accountsrelating to the mining, including all cashdrilling or recovery of any mineral, marketable securities, securities entitlements, financial assets and other funds held in crude oil or gas reserves for the benefit of or on deposit in behalf of Debtor or any of its agents, representatives, successors or assigns (including, without limitation, all contract mining, drilling or recovery agreements and arrangements), and all products and Proceeds thereof and payments thereunder, together with all products and Proceeds (including, without limitation, all insurance policies and proceeds) of and any Accessions to any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixc) to the extent extent, if any, not otherwise includedincluded in clause (a) above, all ProceedsGas, oil and other minerals severed or extracted from the ground (specifically including all "As-Extracted Collateral" of such Debtor and all severed or extracted Gas purchased, acquired or obtained from other parties), and all Accounts, General Intangibles and products and Proceeds thereof or related thereto, regardless of whether any such Gas, oil or other minerals are in raw form or processed for sale and regardless of whether or not Debtor had an interest in the Gas, oil or other minerals before extraction or severance;
(d) to the extent, if any, not included above, each and every other item of personal property and fixtures, whether now existing or hereafter arising or acquired, including, without limitation, all accessions to licenses, contracts and substitutions agreements (including, without limitation, Commodity Hedge Agreements and replacements for and products of any and all of the foregoing and all offspringsInterest Rate Hedge Agreements), rents profits and products of any of the foregoing and all collateral security for the payment or performance of any contract or agreement, together with all products and guarantees given by Proceeds (including all insurance policies and proceeds) and any person with respect Accessions to any of the foregoing.;
(be) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Documentall present and future business records and information, the Equity Interests including, without limitation, computer tapes and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for storage media containing the benefit of Senior Secured Note Holders only to the extent that such Equity Interests same and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act computer programs and software (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modifiedincluding, without the consent of the Note Trusteelimitation, the Collateral Agentsource code, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, object code and related manuals and documentation and all licenses to the extent necessary to release the first-priority security interests in the shares of Equity Interests use such software) for accessing and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any manipulating such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.information; and
(cf) Each Grantor hereby authorizes the Collateral Agent at any time and additional property of Debtor from time to time delivered to file in any relevant jurisdiction any financing statements (including fixture filings) or deposited with respect Secured Party as security for the Secured Obligations or otherwise pursuant to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue terms of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other PersonSecurity Agreement.
Appears in 1 contract
Security Interest. (a) 3.1 As security for the prompt, complete and indefeasible payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration on the payment dates or otherwise) of all the Loan Obligations (other than contingent obligations)Secured Obligations, each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and Borrower grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, Agent a security interest in all of Borrower’s right, title or title, and interest in or and to any and all of the following assets and properties in each case personal property whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles (other than Intellectual Property); (e) Inventory; (f) Investment Property (but excluding thirty-five percent (35%) of the capital stock of any Foreign Subsidiary that constitutes a Permitted Investment); (g) Deposit Accounts; (h) Cash;
(i) Goods; and all Accounts;
other tangible and intangible personal property of Borrower (iiother than Intellectual Property) the Cash Collateral Account (as defined whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and wherever located, and any of Borrower’s property in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited possession or required to be deposited therein;
(iii) all Chattel Paper;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents under the control of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorAgent; and
(xix) , to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products Proceeds of any and all each of the foregoing and all offspringsaccessions to, rents substitutions and replacements for, and rents, profits and products of each of the foregoing; provided, however, that the Collateral shall include all Accounts and General Intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the Intellectual Property (the “Rights to Payment”). Notwithstanding the foregoing, Borrower is not granting to Agent, and Agent is not receiving from Borrower, any grant of a security interest in (a) any of the foregoing and all collateral security and guarantees given by outstanding capital stock or other equity interests of any person with respect to any directly owned Foreign Subsidiary of Borrower in excess of sixty-five percent (65%) of the foregoing.
voting power of all classes of such capital stock or other equity interests of such Subsidiary entitled to vote, (b) Notwithstanding anything to any particular asset if the contrary in this Agreement pledge thereof or any other Senior Secured Note Document, the Equity Interests and other securities of any direct security interest therein is prohibited or indirect subsidiary of Holdings that are owned restricted by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other applicable law, rule or regulation is adopted, which would require) (including any requirement to obtain the filing with the SEC (or any other governmental agency) of separate financial statements consent of any subsidiary governmental authority, regulatory authority or third party), provided that the foregoing exclusion of Holdings due this clause (b) shall in no way be construed (1) to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only apply to the extent necessary to not be subject to such requirement) (that any such Equity Interests described prohibition or other securitiesrestriction is unenforceable under Section 9-406, “Excluded Note Collateral”). In such event9-407, the Security Documents may be amended or modified9-408, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.or
Appears in 1 contract
Sources: Loan and Security Agreement (Genocea Biosciences, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may beEach Issuer, in full when due (whether at stated maturityorder to secure the Secured Obligations, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, Agent for the ratable benefit of the Secured Parties, Parties a continuing security interest in all right, title or interest in or to any and all of the following assets and properties in each case property of such Issuer, whether tangible or intangible, wherever located, and now owned or at any time existing or hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest arising and regardless of where located (but excluding any Excluded Collateral, collectively, the “Issuer Collateral”):
(i) all AccountsReceivables and Related Assets, other than Receivables and Related Assets pledged or assigned to secure other Indebtedness permitted under the Indenture to be so secured;
(ii) the Cash Collateral Account (as defined all General Intangibles and Residual Property Rights, in the Revolving Credit Agreement) each case with respect to any and all cash, securities, Instruments and other property deposited or required to be deposited thereinReceivables Financing Documents;
(iii) the Cash Collateral Account and all Chattel Papercash and Cash Equivalents held in the Cash Collateral Account from time to time; and
(iv) all Proceeds of the Issuer Collateral described in the foregoing clauses (i) through (iii);
(b) Each Issuer and the Secured Guarantor, in order to secure the Secured Obligations, grants to the Collateral Agent for the benefit of the Secured Parties a continuing security interest in all the following property of such Grantor, whether now owned or existing or hereafter acquired or arising and regardless of where located (collectively, the “Grantor Collateral”):
(i) Inventory (including all Motor Vehicles);
(ii) Certificates of Title related to Inventory;
(iii) insurance policies and benefits and rights under insurance policies, all as related to Inventory, which such Grantor is solely or jointly the owner of, insured under, the lienholder or loss payee under or the beneficiary of;
(iv) accessions to, substitutions for and all Documents;replacements, products and Proceeds of, any of the foregoing property described in the foregoing clause (i) through (iii); and
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments, including all Pledged Securities;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records (including, without limitation, financial statements, accounting records, customer lists, credit files, computer programs, electronic data, printouts and other computer materials and records) of each Grantor pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by property; provided, however, that the Grantor Collateral shall not include any person with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Issuer Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to property not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligationsdescribed above.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations)Secured Obligations, each including the Performance Guarantee, the Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementassigns, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, a security interest in (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties in each case whether tangible or intangible, wherever located, and now owned or at any time hereafter acquired by such the Grantor or in which such the Grantor now has or at any time in the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all Accountsthe Collections;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinCollection Accounts;
(iii) all Chattel Paperthe Lockboxes;
(iv) all Documentsthe Lockbox Accounts;
(v) all Equipmentthe Receivables;
(vi) all General Intangiblesthe Seller Related Security;
(vii) all Goodsthe SunGard Financing Related Security;
(viii) all Instruments, including all Pledged Securitiesthe SunGard Funding Related Security;
(ix) all Inventory or documents of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such Grantor; and
(xixx) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for proceeds and products of any and all of the foregoing and all offsprings, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person Person with respect to any of the foregoing.;
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any The Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of hereby irrevocably authorizes the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations Agent for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” assets of such the Grantor or words of similar effecteffect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (xA) whether such the Grantor is an organization, the type of organization and any organizational identification number issued to such the Grantor and (yB) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each The Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(ec) The Security Interest is granted as security only and, except as otherwise required by applicable law, and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any the Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.
Appears in 1 contract
Security Interest. (a) As collateral security for the prompt payment or performance, as the case may be, and performance in full when due of the Obligations (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (other than contingent obligations), each Grantor the Debtor hereby confirms the pledge pledges and grant assigns (as collateral) to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, for the ratable benefit of the Loan Secured Parties, and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations (other than contingent obligations), each Grantor hereby pledges and grants to the Collateral AgentAgent a continuing lien on and security interest in, its successors and permitted assigns, for the ratable benefit all of the Secured Parties, a security interest in all Debtor's right, title or and interest in or and to any and all of the following assets and properties in each case following, whether tangible or intangible, wherever located, and now owned or at any time hereafter arising or acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest and wherever located (but excluding any Excluded Collateral, collectively, the “"Collateral”"):
(ia) all Accounts;
(ii) the Cash Collateral Account (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited therein;
(iiib) all Chattel Paper;
(ivc) all DocumentsDocuments of Title;
(vd) all Equipment;
(vi) all General Intangibles;
(viie) all Goods;
(viiif) all Installment Contracts;
(g) all Instruments, including ;
(h) all Pledged Intangibles;
(i) all Inventory;
(j) all Leases;
(k) all Money;
(l) all Securities;
(ixm) all Inventory Advances to Dealers, Dealer Agreements (and any amounts advanced to or documents liens granted by Dealers thereunder), and the Installment Contracts or Leases securing the repayment of title, customs receipts, insurance certificates, shipping documents such Advances to Dealers (and other written materials related indebtedness of Dealers to the purchase or import Debtor) and related financial property (the security interest granted hereby in such Dealer Agreements, Advances to Dealers, Installment Contracts and Leases, and the Accounts, Chattel Paper, Documents of any InventoryTitle, Instruments, Intangibles, Monies and Proceeds therefrom relating to such Dealer Agreements, Advances to Dealers, Installment Contracts and Leases being subject to the rights of Dealers under Dealer Agreements);
(xn) all Investment Property;
computer records (xi"Computer Records") all Intellectual Property;
and software (xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining "Software"), whether relating to the Collateral;
(xiv) all letters of credit under which such Grantor is foregoing Collateral or otherwise, but in the beneficiary and Letter of Credit Rights;
(xv) all Supporting Obligations;
(xvi) all cash and cash equivalents;
(xvii) all Deposit Accounts and Securities Accounts, including all cash, marketable securities, securities entitlements, financial assets and other funds held in or on deposit in any of the foregoing;
(xviii) all other personal property whatsoever case of such GrantorSoftware, subject to the rights of any non-affiliated licensee of software; and
(xixo) to the extent not otherwise included, all Proceeds, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offspringsin cash or otherwise, rents profits and products of any of the property described in the foregoing clauses (a) through (n) and all collateral security liens, security, rights, remedies and guarantees given by any person claims of the Debtor with respect to any of the foregoing.
(b) Notwithstanding anything to the contrary in this Agreement or any other Senior Secured Note Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for the benefit of Senior Secured Note Holders only to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees in respect thereof without Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any other law, rule or regulation) requiring separate financial statements of such subsidiary to be filed with the SEC (or any other governmental agency). In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any subsidiary of Holdings due to the fact that such subsidiary’s Equity Interests and other securities secure the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to release the first-priority security interests in the shares of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubt, any such Equity Interests shall remain Collateral securing the Loan Obligations for the benefit of the Loan Secured Parties in accordance with the terms of the Credit Agreement and this Agreement. In the event that Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or the related guarantees in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such subsidiary, then the Equity Interests and other securities of such subsidiary shall automatically be deemed to be a part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be subject to any such financial statement requirement). In such event, the Security Documents may be amended or modified, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, to the extent necessary to subject to the Liens under the Security Documents such additional Equity Interests and other securities. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor hereby authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to the Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets” of such Grantor or words of similar effect, and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (x) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (y) in the case of a financing statement filed as a fixture filing, a sufficient description of the real property to which such Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(d) The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office) such documents as may be necessary for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expense, to promptly furnish copies of such filings to the Borrower.
(e) The Security Interest is granted as security only and, except as otherwise required by applicable law, shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a member of any limited liability company or as a partner of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any of the duties, obligations or liabilities of a member of any limited liability company or as a partner in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner of Pledged Collateral consisting of a limited liability company interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among the Collateral Agent, any other Secured Party, any Grantor and/or any other Person.thereto;
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