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) As security for the payment or performance, as the case may beapplicable, 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 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 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) 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 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 Propertythe commercial tort claims specified 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 offspringscollateral security, rents profits and products of any of the foregoing and all collateral security supporting obligations and guarantees given by any person Person with respect to any of the foregoing. Notwithstanding the foregoing, the Article 9 Collateral shall not include (i) any Equipment that is subject to a purchase money Lien or Lien securing Capital Lease Obligations, in each case, permitted under the Credit Agreement to the extent the documents relating to such purchase money Lien or Capital Lease Obligations would not permit such Equipment to be subject to the Security Interests created hereby, (ii) any property to the extent that the grant of the Security Interest in such property is prohibited by any Requirements of Law of any Governmental Authority, (iii) any contract, license or agreement to the extent that the grant of the Security Interest in such contract, license or agreement constitutes a breach or default under or results in termination of such contract, license, agreement, (iv) any Investment Property or Pledged Securities to the extent that the grant of the Security Interest in such Investment Property or Pledged Securities constitutes a breach or default under any applicable shareholder or similar agreement, except, in each case (i) through (iv), to the extent that such Requirement of Law or the provision of such contract, license, agreement instrument or other document or shareholder or similar agreement giving rise to such prohibition, breach, default or termination is ineffective under applicable law, (v) Equity Interests of Unrestricted Subsidiaries, Restricted Subsidiaries that are not wholly owned, entities that are Specified Subsidiaries by reason of clauses (ii) or (iii) of the definition of Specified Subsidiary or entities that are not Subsidiaries (other than Equity Interests held in any Securities Account), and (vi) more than 65% of the outstanding voting Equity Interests of any Foreign Subsidiary; it being understood that this paragraph shall not be seen as excluding from the Article 9 Collateral Proceeds, substitutions or replacements of property described in clauses (i) through (vi) above unless such Proceeds, substitutions or replacements would constitute property described in such clauses (i) through (vi).
(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, such other description as the Collateral Agent may determine 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 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 agrees to provide such information to the Collateral Agent promptly upon written request. The Each Grantor also ratifies its authorization for the Collateral Agent agreesto file in any relevant jurisdiction any initial financing statements (including fixture filings, upon request by the Borrower and at the Borrower’s expenseas applicable) or other appropriate filings, to promptly furnish copies of such filings recordings or registrations 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.
(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 4 contracts
Sources: Credit Agreement (United Surgical Partners International Inc), Guarantee and Collateral Agreement (United Surgical Partners International Inc), Credit Agreement (United Surgical Partners International Inc)
Security Interest. (ai) As This Agreement creates a valid and continuing security for interest (as defined in the payment or performance, as applicable UCC) in the case may be, Collateral in full when due (whether at stated maturity, by acceleration or otherwise) favor of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge and grant 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 on behalf of the Secured Parties, a which security interest in is prior to 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 locatedother Liens (except for Permitted Liens), and now owned or at any time hereafter acquired by is enforceable as such Grantor or in which such Grantor now has or at any time in against creditors of and purchasers from the future may acquire any right, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):
(i) all AccountsSeller;
(ii) the Cash Collateral Account (as defined in Asset, along with the Revolving Credit Agreement) and all cashrelated Asset Files, securities, Instruments and other property deposited constitute a “general intangible,” an “instrument,” an “account,” or required to be deposited therein“chattel paper,” within the meaning of the applicable UCC;
(iii) all Chattel Paperthe Seller owns and has good and marketable title to the Collateral free and clear of any Lien (other than Permitted Liens), claim or encumbrance of any Person;
(iv) the Seller has received all Documentsconsents and approvals required by the terms of any Asset to the sale and granting of a security interest in the Assets hereunder to the Administrative Agent, on behalf of the Secured Parties;
(v) the Seller has caused the filing of all Equipmentappropriate financing statements in the proper filing office in the appropriate jurisdictions under Applicable Law in order to perfect the security interest in the Collateral granted to the Administrative Agent, on behalf of the Secured Parties, under this Agreement;
(vi) all General Intangiblesother than the security interest granted to the Administrative Agent, on behalf of the Secured Parties, pursuant to this Agreement, the Seller has not pledged, assigned, sold, granted a security interest in or otherwise conveyed any of the Collateral. The Seller has not authorized the filing of and is not aware of any financing statements against the Seller that include a description of collateral covering the Collateral other than any financing statement (A) relating to the security interest granted to the Seller under the Sale Agreement, or (B) that has been terminated. The Seller is not aware of the filing of any judgment or tax lien filings against the Seller;
(vii) all Goodsoriginal executed copies of each underlying promissory note or copies of each Loan Register, as applicable, that constitute or evidence each Loan has been, or subject to the delivery requirements contained herein, will be delivered to the Collateral Custodian;
(viii) all Instrumentsthe Seller has received a written acknowledgment from the Collateral Custodian that the Collateral Custodian or its bailee is holding the underlying promissory notes (if any), including all Pledged Securitiesthe copies of the Loan Registers that constitute or evidence the Assets solely on behalf of and for the benefit of the Secured Parties;
(ix) all Inventory none of the underlying promissory notes or documents Loan Registers, as applicable, that constitute or evidence the Assets has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Administrative Agent, on behalf of title, customs receipts, insurance certificates, shipping documents and other written materials related to the purchase or import of any Inventory;Secured Parties; and
(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 none of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only to the extent necessary to not be has been pledged or otherwise made 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 ObligationsLien.
(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: Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource Inc), Sale and Servicing Agreement (Capitalsource 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 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) 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)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. (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. 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) 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. (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 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. (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) 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) 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) 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) 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 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)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) 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.
(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 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 other securities effective as of any direct or indirect subsidiary the date of Holdings that are owned by any Grantor will constitute Collateral securing Note Obligations for this Agreement, include the benefit of Senior Secured Note Holders only Intellectual Property to the extent that such Equity Interests and other securities can secure necessary to permit perfection of Agent’s security interest in the Senior Secured Notes and/or Rights to Payment.
3.2 Notwithstanding the guarantees broad grant of the security interest set forth in respect thereof without Rule 3-10 Section 3.1, above, the Collateral shall not include (a) nonassignable licenses 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 requirement) (any such Equity Interests or other securitiesprohibition on transfer is enforceable under applicable law, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modifiedincluding, without the consent limitation, Sections 9406, 9407 and 9408 of the Note TrusteeUCC), provided further, that upon 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 termination of such subsidiaryprohibition or such consent being provided with respect to any license or contract, then the Equity Interests and other securities of such subsidiary license or contract shall automatically be deemed included in the Collateral; (b) property for which the granting of a security interest therein is contrary to be a part applicable law, provided that upon the cessation 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 restriction or prohibition, such event, property shall automatically be included in 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.
Collateral; (c) Each Grantor hereby authorizes any property subject to a Permitted Lien hereunder, if the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements (including fixture filings) grant of a security interest with respect to such property pursuant to this Agreement would be prohibited by the Collateral agreement creating such Permitted Lien or any part thereof would otherwise constitute a default thereunder or create a right of termination by a party thereto (other than Borrower), provided that upon the termination and amendments thereto that (i) indicate the Collateral as “all assets” release of such Grantor Lien or words of similar effectprohibition, 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) property shall automatically be included 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 Collateral; 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 BorrowerExcluded Account.
(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 (Century Therapeutics, Inc.), Loan and Security Agreement (Century Therapeutics, 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) 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) 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 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 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) 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 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. (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. (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 collateral security for the payment Secured Obligations, including any and all renewals 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)extensions thereof, each Grantor Pledgor hereby confirms the pledge delivers, pledges, transfers and grant collaterally 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 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 Pledgee and grants to the Collateral Agent, its successors and permitted assignsPledgee, for the ratable benefit of the Secured Parties, a first priority security interest in all of such Pledgor’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 intangiblePledged Shares (including, wherever locatedwithout limitation, the Pledged Shares described on Schedule I hereto), and all other Equity Interests of any kind or nature of all existing and future Subsidiaries of such Pledgor, now owned or at any hereafter acquired, whether such Equity Interests are certificated or uncertificated, and each of the notes, capital stock, and all other investment property, financial assets and general intangibles of such Pledgor related to the foregoing, including, without limitation, and subject to Section 7(b), the right to vote such Equity Interests, now owned, legally, beneficially or hereafter acquired, together with all proceeds of and additions to such Equity Interests from time hereafter acquired by such Grantor to time received, receivable or otherwise distributed in respect of or in which such Grantor now has exchange for any or at any time in all of the future may acquire any rightforegoing, title including all dividends, interest distributions, cash, warrants, rights, instruments and other property, except for cash dividends or interest (but excluding other cash distributions to the extent permitted under Section 7(a); provided, however, that notwithstanding anything herein to the contrary, no Loan Party shall be required to pledge Equity Interests of any Excluded CollateralSubsidiary, to the extent such Equity Interests carry more than 65% of the total combined voting power of any “first-tier” Excluded Subsidiary (as determined for purposes of Treasury Regulations Section 1.956-2(c)) unless such Excluded Subsidiary has guaranteed Indebtedness of the Borrower or any of its Domestic Subsidiaries or pledged any of its assets or suffered a pledge of a greater percentage of its Equity Interests to secure Indebtedness of the Borrower or any of its Domestic Subsidiaries (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 2 contracts
Sources: Pledge Agreement (Cambium Learning Group, Inc.), Pledge Agreement (Cambium Learning Group, 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 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) 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 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 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 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)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, 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) 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) 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) 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.
3.2 Notwithstanding the broad grant of the security interest set forth in Section above, the Collateral shall not include:
(a) the equity interest of any Borrower in the Primary Care Joliet Joint Venture, (b) Notwithstanding anything to the contrary in this Agreement nonassignable licenses 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 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 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) 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 requirementLien is granted (or in the document providing for such capital lease) (any such Equity Interests prohibits or other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modified, without requires the consent of any person other than Borrower which has not been obtained as a condition to the Note Trustee, the Collateral Agentcreation of, any Senior Secured Note Holder or any holder of Other Pari Passu other 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 on 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 regulationproperty, or (d) 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 accounts used solely to fund current payroll or employee benefits maintained in the Collateral ordinary course of business, (ii) escrow and Cash collateral accounts properly owned by commercial insurance partners of Borrower or lessors to Borrower maintained in the ordinary course of business, or (iii) so long as “all assets” the proceeds of such Grantor account are transferred on a daily basis to an account in which Agent has a security interest and that is subject to an Account Control Agreement, accounts maintained in the ordinary course of business (A) solely containing payments from commercial insurance partners of Borrower or words of similar effectthe Centers for Medicare and Medicaid Services, and (iiB) 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 that are subject 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 agreement between Borrower and at the Borrower’s expense, to promptly furnish copies commercial insurance partners 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 Borrower or the Grantors as debtors Centers for Medicare and the Collateral Medicaid Services that contains a prohibition on granting a security interest to 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 that is granted as security only and, except as otherwise required by effective under 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 (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)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 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 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 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 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 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 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)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 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 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) 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 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 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. (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 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 collateral security for the prompt and complete payment or performance, as the case may be, in full and performance when due of all of its First Lien Obligations owing to any of the First Lien Secured Parties, the Borrower hereby pledges, assigns, hypothecates and transfers to the Collateral Agent for the benefit of the First Lien Secured Parties, and grants to the Collateral Agent for the benefit of the First Lien Secured Parties a first-priority security interest in and to, all of the Borrower’s right, title and interest, whether now existing or hereafter acquired or arising, in, to and under, all of the Accounts and all Account Property at any time deposited in or credited to the Accounts and all security entitlements with respect thereto, including all income or gain earned thereon, and any proceeds thereof (whether at stated maturitycollectively, by acceleration the “Account Collateral”); provided, however, that the Lien on all of the Borrower’s rights, title and interest in, to and under (x) the Credit Agreement Debt Service Reserve Account and all amounts on deposit therein or otherwisecredited thereto (including any Letter of Credit and any Acceptable Third Party DSR LC) shall be solely for the benefit of the Term Loan Lenders (and, solely to the extent set forth in the last sentence of Section 3.5(f), the other First Lien Secured Parties), (y) each Additional Debt Service Reserve Account and all amounts on deposit therein or credited thereto (including any letters of credit) shall be solely for the benefit of the holders of the applicable Series of Additional First Lien Obligations (and, solely to the extent set forth in the last sentence of Section 3.5(g), the other First Lien Secured Parties) and (z) each L/C Cash Collateral Account and all amounts on deposit therein or credited thereto shall be solely for the benefit of the applicable Issuing Bank (but solely with respect to its Letter of Credit Issuance Commitment, any DSR Loan or Revolving Loan deemed made pursuant to Section 2.3(c)(ii) of the Loan Obligations Credit Agreement and any Unreimbursed Amount owed to it from time to time) as contemplated by Section 3.9.
(b) Each of the Borrower, the other than contingent obligations), each Grantor hereby confirms the pledge Credit Parties and grant to the Collateral Agent, on behalf of the First Lien Secured Parties, hereby authorizes the Depositary Bank to set off against and/or debit the Account Collateral to the extent of any and all fees and charges owing to the Depositary Bank directly related to the Account Collateral or the Depositary Bank’s duties and rights hereunder (including the reasonable fees and expenses of its successors counsel) and permitted assigns the face amount of any checks which have been credited to any Account but are subsequently returned because of uncollected or insufficient funds if the Borrower has not paid such fees and charges or otherwise reimbursed the Depositary Bank for any returned checks within three (3) Business Days from the date (i) such amounts are due and owing or (ii) such checks are returned to the Depositary Bank. Except with respect to the amounts described in the preceding sentence, the Depositary Bank hereby waives any right of set-off or recoupment that it may have or obtain with respect to the Accounts or Account Collateral deposited therein or credited thereto and agrees that in the event that the Depositary Bank has or subsequently obtains by agreement, by operation of law or otherwise a security interest in the Account Collateral, the Depositary Bank hereby agrees that such security interest shall be subordinate to 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 Agent for the benefit of the Loan First Lien 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 amendedParties, 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 Obligationsrespectively.
(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: Depositary Agreement (Cheniere Energy Partners, L.P.)
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 bargains, sells, conveys, assigns, sets over, mortgages, pledges, hypothecates 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 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 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”):), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations:
(i) all AccountsAccounts Receivable;
(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 cash and other written materials related to the purchase or import of any Inventorycash accounts;
(x) all Investment Property;
(xi) all Intellectual Property;
(xii) all Pledged Collateral;
(xiii) all Records and all books and records pertaining to the Collateral;
(xii) all Fixtures;
(xiii) all Letter-of-credit rights;
(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 commercial tort claims listed on deposit in any of the foregoing;
(xviii) all other personal property whatsoever of such GrantorSchedule VI hereto; 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 offspringsforegoing, rents profits and products of any of the foregoing and all collateral security and guarantees given by any person provided, however, that Collateral shall not include with respect to any Grantor, any item of property to the foregoingextent the grant by such Grantor of a security interest pursuant to this Agreement in such Grantor’s right, title and interest in such item of property is prohibited by an applicable enforceable contractual obligation (including but not limited to a Capital Lease Obligation) or requirement of law or would give any other Person the enforceable right to terminate its obligations with respect to such item of property and provided, further, that the limitation in the foregoing proviso shall not affect, limit, restrict or impair the grant by any Grantor of a security interest pursuant to this Agreement in any money or other amounts due or to become due under any Account, contract, agreement or General Intangible.
(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 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, hereby irrevocably authorizes the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligationsin accordance with, and 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 eventconsistent with, the Security Documents may be amended or modifiedIntercreditor Agreement, 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 Grantor Grantor, or words of similar effect, or as being of an equal or lesser scope or with greater detail, and (ii) that 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 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 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 Canada) 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 (but, prior to the occurrence of any Event of Default or Default, the Collateral Agent shall provide notice of such filing to such 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”):): 193389732_2
(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 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 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 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)Secured Notes 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 Notes 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 the contrary in this Agreement or any other Senior Secured Note DocumentEach 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 but does 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 Trusteeobligate, the Collateral Agent, any Senior Secured Note Holder Agent (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 its designee) for the benefit of the Loan Secured Notes 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 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 (but not obligated) 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 Notes 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 performanceSecured Obligations and Grantor's other obligations under the Charter Documents, 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 grants to the Collateral Agent, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreement, Secured 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 Parties, Beneficiary a security interest in and lien upon (hereinafter referred to as the "Security Interest") the following described personal property (whether now owned by Grantor or existing or hereafter arising or acquired by Grantor) and in all rightproceeds (including cash proceeds, title or interest insurance proceeds and proceeds of proceeds) of such property in any form (hereinafter collectively referred to as the "Collateral"):
a. All engines, boilers, machinery, masts, anchors, cables, spars, rigging, tackle, apparel, furniture, fittings, boats, chains, equipment, fixtures and all other appurtenances of Grantor appertaining and belonging to either of the Collateral Vessels or to any and the "M.G. Hulme, Jr.", the vessel leased by Grantor under the Ch▇▇▇▇▇ (▇▇▇ "Charter Vessel"), whether aboard or removed from the Collateral Vessels or the Charter Vessel, together with all of the following assets and properties in each case whether tangible additions, improvements, and/or replacements thereto or intangible, wherever locatedthereof, and now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in not otherwise subject to the future may acquire any right, title or interest Mortgages (but excluding any Excluded Collateral, collectively, the “Collateral”):"Appurtenances").
b. Grantor's interest in all casualty, liability, property, indemnity, hull, war risk, pollution and marine insurance policies, and Grantor's interest in all proceeds thereof and payments thereunder, relating to either of the Collateral Vessels or to the Charter Vessel.
c. All of Grantor's accounts, general intangibles and contract rights consisting of or relating to all present and future drilling contracts, charters, subcharters and other agreements providing for the possession, use or employment of the Charter Vessel or of either of the Collateral Vessels (i) all Accounts;
(ii) any agreements relating to the Cash Collateral Account (foregoing are referred to hereinafter collectively as defined in the Revolving Credit Agreement"Contracts") and all cash, securities, Instruments and other property deposited or required rights 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 payment 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 Proceedswhether for hire, all accessions to and substitutions and replacements for and products of any and all of the foregoing and all offspringsindemnity, 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 foregoingdamages or otherwise.
(b) Notwithstanding anything to the contrary d. Grantor's interest in this Agreement all sums otherwise earned 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 (earned of 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 from either 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 Vessels 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 BorrowerCharter Vessel.
(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) 3.1 As security for the prompt and complete payment or performance, as the case may be, in full when due (whether at stated maturityon the Payment Dates, by acceleration Balance Test 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, Lender 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 personal property, in each case case, 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 (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 furniture; (as defined k) Commercial Tort Claims; and (l) Intellectual Property, in each case, wherever located, and including 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 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 of the foregoing and all collateral security and guarantees given by any person with respect to any each of the foregoing.
3.2 Notwithstanding the broad grant of the security interest set forth in Section 3.1, above, nor anything else in any of the Loan Documents, the Collateral shall not include: (a) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock of any Foreign Subsidiary (or of any holding company, substantially all the assets of which consist directly or indirectly of equity interests or debt issued by one or more Foreign Subsidiaries) which shares entitle the holder thereof to vote for directors or any other matter; (b) Notwithstanding anything any “intent to use” trademarks at all times prior to the contrary first use thereof, whether by the actual use thereof in this Agreement or any other Senior Secured Note Documentcommerce, 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 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 United States Copyright Office otherwise; (c) any permits, state or local franchises, charters, authorizations or licenses issued to any Borrower as the holder or licensee thereof, or any Project Financing Document to which any Borrower or any SPE is party, or any other contracts or other agreements to which any Borrower or any SPE is a party (including, without limitation, those agreements set forth on Schedule 3.2) and any Project, equipment or other property subject thereto (including, without limitation, leased or pledged thereunder), now existing or entered into in the future, in each case only (x) to the extent and for so long as the terms of such permit, franchise, charter, authorization, license, lease, contract or other agreement effectively (after giving effect to Sections 9-406 through 9-409, inclusive, of the UCC in the applicable state (or any successor officeprovision or provisions) or any other applicable laws) prohibits the creation by such documents Borrower of a security interest in such permit, license, lease, contract or other agreement or any Project, equipment or other property subject thereto in favor of the Lender or would result in an effective invalidation, termination, default or breach of the terms of any such permit, license, lease, contract or other agreement (after giving effect to Sections 9-406 through 9-409, inclusive, of the UCC in the applicable state (or any successor provision or provisions) or any other applicable laws) in each case unless and until any required consents are obtained and (y) solely to the extent of the underlying obligations secured thereby, provided that if and when the prohibition which prevents the granting of a Lien is removed, terminated or otherwise becomes unenforceable as may be necessary for the purpose a matter of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantorlaw (including, without limitation, the signature termination of any Grantorsuch security interest resulting from the satisfaction of the obligations secured thereby), and naming notwithstanding any Grantor previous release of Lien provided by the Lender requested in connection with respect to any such obligations, the Collateral will be deemed to include, and at all times to have included, such permits, state or local franchises, charters, authorizations, licenses, leases, contracts or other agreements and any Project, equipment or other property subject thereto, in each case without further action or notice by any Person; (d) any capital stock or other equity interest of any SPE; (e) any equipment securing purchase money indebtedness or Indebtedness relating to capital leases if the Grantors as debtors granting of a Lien to any third party is prohibited by the agreement(s) setting forth the terms and conditions applicable to such Indebtedness, but only if such Indebtedness and the Collateral Agent Liens securing the same are permitted by this Agreement, provided that if and when the prohibition which prevents the granting of a Lien in any such equipment is removed, terminated or otherwise becomes unenforceable as a matter of law (including, without limitation, the termination of any such security interest resulting from the satisfaction of the Indebtedness secured party. The Collateral Agent agreesthereby), upon request and notwithstanding any previous release of Lien provided by the Borrower Lender requested in connection with respect to any such Indebtedness, the Collateral will be deemed to include, and at all times shall have included, such equipment without further action or notice by any Person; and (f) any Deposit Accounts that constitute Project Restricted Accounts, but only so long as such Project Restricted Accounts are prohibited from being pledged to the Lender pursuant to the applicable Project Financing Documents.
3.3 Lender agrees that the security interest granted in Section 3.1 shall continue until the Secured Obligations (other than contingent indemnification or reimbursement obligations that are not yet due and payable) have been paid in full and Lender has no further commitment or obligation hereunder or under the other Loan Documents to make any further Advances, at which time Lender shall promptly terminate the security interest and, at Borrower’s expense, take all actions reasonably requested by Borrower to promptly furnish copies of evidence such filings to termination, including 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 prompt return 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 possessory collateral held 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 PersonLender.
Appears in 1 contract
Security Interest. (a) As a general and continuing security for the payment or and performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) of the Loan Obligations (Secured Obligations, the Grantor, IN CONSIDERATION THEREOF, and for other than contingent obligations)good and valuable consideration, each Grantor the receipt and sufficiency of which are hereby confirms the pledge acknowledged, hereby bargains, assigns, mortgages, pledges, hypothecates and grant transfers to the Collateral Agent, including 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, including its successors and permitted assigns, for the ratable benefit of the Secured Parties, a continuing security interest in in, all of the Grantor’s right, title or and interest in or in, to any and all under the following property of the following assets and properties in each case Grantor, whether tangible or intangible, wherever located, and now owned or at any time hereafter hereafter-acquired by such Grantor or in which such Grantor now has or at any time in on behalf of the future may acquire any rightGrantor, title or interest wherever located (but excluding any Excluded Collateralhereinafter, 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;
(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;
(xviic) all Deposit Accounts and Securities Concentration Accounts;
(d) all Documents of Title relating to the Grantor’s Inventory;
(e) all Chattel Paper arising from the sale of the Grantor’s Inventory;
(f) all Instruments, including Intangibles, Supporting Obligations and Letter of Credit Rights arising from the sale of Inventory;
(g) all cashpolicies and certificates of insurance and all insurance proceeds, marketable securitiesrefunds, securities entitlementsand premium rebates, financial assets including, without limitation, proceeds of fire and other funds held in or on deposit in credit insurance, with respect to any of the foregoing;
(xviiih) all other personal property whatsoever of such Grantor; and
(xix) to the extent not otherwise includedbooks, all Proceedsrecords, 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 information relating to any of the foregoing., and all rights of access to such books, records and information;
(bi) all liens, guaranties, rights, remedies, and privileges pertaining to any of the foregoing ((a) through (h)), including the right of stoppage in transit; and
(j) any of the foregoing whether now owned or now due, or in which the Grantor has an interest, or hereafter acquired, arising, or to become due, or in which any Grantor obtains an interest, and all products, Proceeds, substitutions, and accessions of or to any of the foregoing. Notwithstanding anything the foregoing, the term “Collateral” shall expressly exclude any Inventory or other Goods that have been delivered to the contrary in this Agreement Grantor on a consignment basis (“Consigned Inventory”), or any Accounts, Documents of Title, Chattel Paper, Instruments, Intangibles, Supporting Obligations, Letter of Credit Rights or any other Senior Secured Note Documentassets or properties described above, 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 any of the foregoing relate to, or arise out of the sale or other disposition of, any of the Consigned Inventory or Proceeds thereof. Security Agreement – ▇▇▇▇ Canada Co. (2009) Without limiting the foregoing, the Grantor hereby designates the Collateral Agent as its true 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 lawlawful attorney, 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 exercisable by the SEC to require (Collateral Agent whether or is replaced not an Event of Default exists, with another rule or regulationfull power of substitution, 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, at the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations’s option, 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 doubtfile one or more financing statements, 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 regulationfinancing change statements, or any to sign 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 continuing or protecting the Security Interest security interest granted by each the Grantor, without the signature of the Grantor (the Grantor hereby appointing the Collateral Agent as its attorney to sign the Grantor’s name to any Grantorsuch document, whether or not an Event of Default exists), and naming any the Grantor or the Grantors as debtors debtor and the Collateral Agent as secured party. The Collateral Agent agrees, upon request by the Borrower and at the Borrower’s expenseprovided, 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 that the Collateral Agent shall become have the owner same rights as the Grantor’s true and lawful attorney referred to above to enforce the security interest granted by the Grantor, but only if an Event 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 PersonDefault exists.
Appears in 1 contract
Sources: Security Agreement (Zale Corp)
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, Borrower and 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 Guarantor 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 of Borrower’s and all of the following assets and properties in each case whether tangible or intangible, wherever located, and such Guarantor’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; (e) Inventory; (f) Investment Property (but excluding thirty-five percent (35%) of the capital stock of any Foreign Subsidiary that constitutes a Permitted Investment and Excluded Equity Interests); (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 Borrower and each Guarantor, whether now or hereafter owned or existing, leased, consigned by or to, or acquired by, Borrower and such GrantorGuarantor 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 3.2 Upon the closing of a Qualified IPO, Lender shall release its security interest in the Intellectual Property; 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 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
Sources: Loan and Security Agreement (BrightSource Energy 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 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 “Collateral”"GUARANTEED OBLIGATIONS 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 InventoryIntellectual Property;
(x) all Investment Property;
(xi) all Intellectual PropertyLetter-of-credit rights;
(xii) all Pledged Collateralspecified commercial tort claims, if any;
(xiii) all Records and all books and records pertaining to the Guaranteed Obligations 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 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 Guaranteed Obligations Collateral shall not include the Excluded 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 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 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 filingfiling or covering Guaranteed Obligations Collateral constituting minerals or the like to be extracted or timber to be cut, a sufficient description of the real property to which such Guaranteed Obligations 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) 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 other 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.
(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 Guaranteed Obligations 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 (McLeodusa Inc)
Security Interest. (a) As security for Each of the payment following items or performancetypes of property, whether now owned or hereafter acquired, now existing or hereafter created and wherever located, is hereinafter referred to as the case may beCollateral (the “Collateral”): (i) all Collateral Cash Flow, (ii) all rights to the CDO Collateral Manager Distributions, (iii) all Additional Collateral, (iv) all Income with respect to the Additional Collateral, (v) with respect to the Additional Collateral, all files, documents, instruments, agreements, certificates, correspondence, appraisals, computer programs, computer storage media, accounting records and other books and records relating to, governing or constituting any of the foregoing, (vi) the Collection Account, the CDO Management Fee Account and all monies, cash, deposits, securities or investment property from time to time on deposit in full when due the Collection Account and the CDO Management Fee Account, (whether at stated maturityvii) all Mortgage Loan Documents, all Mortgage Asset Files, including, without limitation, all promissory notes, all Security Agreements relating to the Additional Collateral and any other collateral pledged or otherwise, notes, certificates, instruments, negotiable documents, chattel mortgages and all other loan, security or other documents relating to such Additional Collateral and/or any collateral pledged or otherwise, together with all files, documents, instruments, surveys, certificates, correspondence, appraisals, licenses, contracts, computer programs, computer storage media, accounting records and other books and records relating thereto, (viii) all collateral, security interests, rights and other interests under or with respect to the Additional Collateral, (ix) all purchase agreements and the collateral, security interests, rights and other interests thereunder, (x) all mortgage guaranties and insurance (issued by acceleration governmental agencies or otherwise) and any mortgage insurance certificate, policy or other document evidencing such mortgage guaranties or insurance relating to any Additional Collateral and all claims, payments and proceeds thereunder, (xi) all servicing fees to which a Borrower (or any Subsidiary of such Borrower) is entitled and servicing and other rights relating to the Additional Collateral, (xii) all Servicing Agreements, Servicing Records, Servicing Files and Servicer Accounts, to the extent related to the Additional Collateral, established pursuant to any Servicing Agreement, Pooling and Servicing Agreement or otherwise and all amounts on deposit therein, from time to time, (xiii) all rights of the Loan Obligations (other than contingent obligations), each Grantor hereby confirms the pledge Borrower under any Pooling and grant Servicing Agreements relating to the Collateral AgentAdditional Collateral, its successors and permitted assigns (xiv) all other agreements or contracts relating to, constituting, or otherwise governing, any or all of the security foregoing to the extent they relate to the Additional Collateral, including the right to receive principal and interest payments and any related fees, breakage fees, late fees and penalties with respect to the Additional Collateral and the right to enforce such payments, insurance policies, certificates of insurance, insurance proceeds and the rights to any insurance proceeds, (xv) rights to any collection account, escrow account, reserve account, collateral account or lock-box account related to the Additional Collateral, including all monies, cash, deposits, securities or investment property from time to time on deposit therein, (xvi) rights of any Borrower under any letter of credit, guarantee, or other credit support or enhancement related to the Additional Collateral, (xvii) the rights of any Borrower under any Interest Rate Protection Agreements relating to the foregoing, (xviii) the Pledged Collateral and the Pledged Preferred Equity Collateral, (xix) all purchase or take-out commitments relating to or constituting any of the Original Guarantee Additional Collateral, (xx) all “general intangibles”, “accounts”, “chattel paper”, “deposit accounts”, “security accounts”, “instruments”, “securities”, “financial assets”, “uncertified securities”, “securities entitlements” and Collateral Agreement, for “investment property” as defined in the ratable benefit of the Loan Secured Parties, and Uniform Commercial Code 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 effect from time to time relating to the Additional 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 constituting any and all of the following assets and properties in each case whether tangible or intangible, wherever locatedforegoing as they relate to the Additional Collateral, and now owned or at (xxi) 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 cashreplacements, securitiessubstitutions, Instruments and other property deposited conversions, distributions on 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 proceeds of any and all of the foregoing and all offspringsforegoing; provided, rents profits and products of any however, none of the foregoing and all collateral Collateral shall include any obligations. Notwithstanding the foregoing grant of a security and guarantees given by interest, Collateral shall not include (i) any person with respect to account, instrument, chattel paper or other obligation or Property of any kind due from, owed by, or belonging to, a Person described in the definition of Prohibited Person or (ii) any lease in which the foregoinglessee is a Person described in the definition of Prohibited Person.
(b) Notwithstanding anything The Borrowers hereby assign, pledge and grant a security interest in all of their right, title and interest in, to and under the Collateral 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 Administrative Agent (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 permitLenders) such subsidiary’s Equity Interests and other securities to secure the Senior Secured Notes and/or Obligations. The assignment, pledge and grant of security interest contained herein shall be, and 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 Borrowers hereby represent 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 warrant to the extent necessary Administrative Agent that it is, a first priority perfected security interest. The Borrowers agree to not be subject ▇▇▇▇ their computer records and tapes to any such financial statement requirement). In such event, evidence 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, interests granted 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 ObligationsAdministrative Agent hereunder.
(c) Each Grantor hereby authorizes The assignment, pledge and grant of a security interest under this Section 8.1 does not constitute and is not intended to result in a creation or an assumption by the Collateral Administrative Agent at or any time and from time to time to file Lender of any obligation of the Borrowers or any other Person in connection with any relevant jurisdiction any financing statements (including fixture filings) with respect to or all of the Collateral or under any part thereof and amendments thereto that agreement or instrument relating thereto. Anything herein to the contrary notwithstanding, (i) indicate the Borrowers shall remain liable under the Collateral to the extent set forth therein to perform all of their duties and obligations thereunder to the same extent as “all assets” if this Agreement or the other Loan Documents had not been executed, (ii) the exercise by the Administrative Agent or any Lender of such Grantor any of its rights in the Collateral shall not release the Borrowers from any of their duties or words of similar effectobligations under the Collateral, and (iiiii) contain the information required by Article 9 of Administrative Agent and the Uniform Commercial Code of each applicable jurisdiction for the filing of Lenders shall not have any financing statement obligations 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 liability under 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 reason of this Agreement or otherwise (except as referred the other Loan Documents, nor shall the Administrative Agent or any Lender be obligated to in the following sentence) shall have perform any of the duties, obligations or liabilities duties of a member of the Borrowers thereunder or to take any limited liability company action to collect or as a partner in enforce 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 Personclaim for payment assigned hereunder.
Appears in 1 contract
Security Interest. (a) As security for To secure the prompt 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)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 continuing security interest (the “Security Interest”) in and Lien upon all rightProperty of such Grantor, title or interest in or to any and including all of the following assets and properties 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 rightacquired, title or interest and wherever 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 cashChattel Paper, securities, Instruments and other property deposited or required to be deposited thereinincluding Electronic Chattel Paper;
(iii) all Chattel PaperCommercial Tort Claims, including those shown on Schedule III;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all InstrumentsCommodity Accounts, 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 cashchecks, cash and other evidences of payment, marketable securities, securities entitlements, financial assets and other funds or Property held in or on deposit in any of the foregoingforegoing other than any Excluded Accounts;
(xviiiv) all Documents;
(vi) all General Intangibles, including Payment Intangibles and Intellectual Property;
(vii) all Goods, including Inventory, Equipment and Fixtures, including, the Pipeline Systems now owned or hereafter acquired or constructed by such Obligor;
(viii) all Instruments;
(ix) all Investment Property;
(x) all Letters of Credit and Letter-of-Credit Rights;
(xi) all As-Extracted Collateral;
(xii) all Software;
(xiii) all Supporting Obligations;
(xiv) all monies, whether or not in the possession or under the control of the Collateral Agent or a bailee or Affiliate of the Collateral Agent other personal property whatsoever than monies in Excluded Accounts;
(xv) all accessions to, substitutions for, and all replacements, products, and cash and non-cash proceeds of such Grantorthe foregoing, including proceeds of and unearned premiums with respect to insurance policies, and claims against any Person for loss, damage or destruction of any Collateral; and
(xixxvi) all books and records (including customer lists, files, correspondence, tapes, computer programs, print-outs and computer records) and other property relating to, used or useful in connection with, evidencing, embodying, incorporating or referring to, or pertaining to any of pertaining to the extent foregoing. Notwithstanding the foregoing, (a) Collateral shall not otherwise includedinclude the Excluded Assets; provided that proceeds and other assets or Property received, all Proceedsarising from, all accessions to and substitutions and replacements in exchange for and products or in respect of any Excluded Assets shall automatically (and all of without any further action) be subject to the foregoing security interest and all offsprings, rents profits Lien granted by the applicable Grantor pursuant to this Section 3.01 and products of shall constitute Collateral hereunder (unless any of the foregoing such assets or Property are themselves Excluded Assets) and all collateral security and guarantees given by (b) no Obligor shall be required to take any person action with respect to any the perfection 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 motor vehicles and other securities assets subject to a certificate of title other than any Compression Unit that are so deemed to no longer constitute part is covered by a certificate of title, Letter-of-Credit Rights that have a face amount of less than $5,000,000 in the Collateral securing the Note Obligations in favor of the Note Secured Parties. For the avoidance of doubtaggregate, 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 Commercial Tort Claim reasonably estimated 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)less than $5,000,000 or Excluded Accounts. 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) The applicable Obligors 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 at the request of 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 Agent give written notice to the Collateral Agent promptly upon written request. The Collateral Agent agrees, upon request by the Borrower identifying in reasonable detail Excluded Assets and at the Borrower’s expense, shall provide 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 such other information regarding the Excluded Assets 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 Personmay reasonably request.
Appears in 1 contract
Sources: Collateral Agreement (Summit Midstream 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), 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 PartiesObligations (as hereinafter defined), ▇▇▇▇ hereby grants a security interest in and to (x) all rightproperty of ▇▇▇▇ now or hereafter deposited or held in the Pledged Account as described in Section 2 of this Agreement, title or interest in or to including without limitation (i) any and all Guaranty Fees previously paid by Loan Originators and currently held by U.S. Bank National Association as Trustee in the Existing Pledged Account created under each of the following assets and properties Account Security Agreements with respect to Loans purchased on the Closing Date as set forth in each case whether of the Account Security Agreements; (ii) any and all additional Guaranty Fees with respect to such Loans purchased by the Owner, which fees will be deposited into the Pledged Account on the Closing Date; and (iii) all Recoveries, which Recoveries shall be remitted by or on behalf of ▇▇▇▇ to the Trustee on the 15th day of each month for Recoveries received during the preceding month, and (y) TERI's right to receive all Earnings. The foregoing shall not be deemed to include a grant of a security interest in defaulted Loans. In furtherance thereof and in confirmation of the foregoing, ▇▇▇▇ hereby grants to the Owner (and its assigns) a first priority security interest in and to the following, to the extent they relate to Loans purchased by the Owner:
(a) All property of ▇▇▇▇ deposited or held in the Pledged Account, as provided in this Agreement, both tangible or and intangible, wherever located, and whether 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▇▇▇▇ and wheresoever located, title or interest (but excluding any Excluded Collateral, collectively, the “Collateral”):including without limitation:
(i) All contract rights, claims, instruments, notes and accounts, whether now existing or hereafter arising, including, without limitation, all of the same evidencing or representing indebtedness due or to become due to ▇▇▇▇ (all hereinafter called the "Accounts");
(ii) All funds and investments thereof, whether in the Cash Collateral Account form of certificates of deposit, repurchase agreements, U.S. Treasury Bills, U.S. Treasury Notes, investment grade commercial paper, U.S. Treasury Bonds, Federal agency notes or other investments, securities (whether certificated or uncertificated and specifically including any securities which are purchased through and for which records are maintained on a book entry system through any securities intermediary (as defined in § 8-102(a)(14) of the Revolving Credit Agreement) Uniform Commercial Code)), payment intangibles and general intangibles, whether now existing or hereafter arising and wheresoever located, or otherwise (all cash, securities, Instruments and other property deposited or required to be deposited thereinhereinafter called the "Intangibles");
(iii) All right, title and interest of ▇▇▇▇ in or to all Chattel Paperinstruments and documents covering or relating to the above described property, including but not limited to, all books, records, computer printouts, tapes, disks, ledger sheets, files and other data (all such instruments and documents being called the "Related Documents");
(iv) All interest, dividends and/or other earnings of any kind which are paid with respect to or derived from the Pledged Account, and all Documents;proceeds of any of the foregoing, and the present and continuing right to make claim for, collect and receive, any and all such interest, dividends and/or other earnings; and
(v) All the proceeds of 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;
(xviiib) All contract and other rights of ▇▇▇▇ to receive payment of Guaranty Fees, other than the ▇▇▇▇ Guarantee Fee Entitlement, from the Owner under each of the Guaranty Agreements; TERI's rights to receive subsequent Guarantee Fees from the Owner pursuant to each of the Guaranty Agreements, and any separate undertaking or agreement by the Owner to pay such subsequent Guarantee Fees;
(c) All Recoveries and all other personal property whatsoever rights of such Grantor▇▇▇▇ to receive or collect Recoveries; and
(xixd) All proceeds of the foregoing. All of the foregoing property in which the Owner has been granted a security interest is herein collectively referred to the extent not otherwise included, all Proceeds, all accessions as "Collateral." It is expressly understood and agreed that this security interest shall automatically attach to and substitutions and replacements for and products of any and all future deposits to, earnings from, and proceeds of the foregoing Pledged Account immediately upon deposit or accrual, and all offsprings, rents profits Guaranty Fees and products of any of Recoveries immediately upon 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 modifiedreceipt thereof, without the consent making or doing of the Note Trusteeany further act or thing whatsoever. ▇▇▇▇ shall promptly take all further action, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, and execute and deliver to the extent necessary to release the first-priority security interests in the shares of Equity Interests and Owner such 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 doubtdocuments, 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 as 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 requested from time to time by the Owner to file in any relevant jurisdiction any financing statements (including fixture filings) with respect to create, evidence, maintain and effect 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) Owner's security 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 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 Pledged Account 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 Borrowerother rights pledged hereunder.
(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: Deposit and Security Agreement
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 obligationsand subject to Section 4.01(d), 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 and Lien on 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, to or under which such 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 all Chattel Paper (as defined in the Revolving Credit Agreement) and all cash, securities, Instruments and other property deposited or required to be deposited thereinincluding Electronic Chattel Paper);
(iii) all Chattel Papercash, cash equivalents and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all GoodsGeneral Intangibles, including all Intellectual Property;
(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 Propertyother Goods;
(xi) all Intellectual Investment Property;
(xii) all Pledged CollateralLetter-of-Credit rights and Supporting Obligations;
(xiii) all Records Securities Accounts and Commodities Accounts and all assets on deposit therein;
(xiv) all Commercial Tort Claims specifically described on Schedule IV, as such schedule may be supplemented from time to time pursuant to Section 4.02(f);
(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 Proceedsaccessions to, substitutions for, and all accessions to replacements, products and substitutions and replacements for and products Proceeds of any and all of the foregoing foregoing, including proceeds of and all offspringsunearned premiums with respect to insurance policies, rents profits and products claims against any Person for loss, damage or destruction of any of the foregoing Collateral, 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 (or its designee) 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” , whether now owned or at any time 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 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 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 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 financing statements or amendments thereto if filed prior to the Borrower.
date hereof. The Administrative Agent (dor its designee) 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 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 .
(d) Notwithstanding anything herein to the contrary, in this Agreement no event shall the security interest granted hereunder attach to (i) any assets if, to the extent and for so long as the grant of a Lien thereon to secure the Obligations is prohibited by any Requirements of Law or contract (so long as any contractual restriction is not incurred in contemplation of such entity becoming a subsidiary of Holdings) (other than to the extent that any such prohibition would be construed rendered ineffective pursuant to make any other applicable Requirements of Law, including pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the Collateral Agent New York UCC); provided that such security interest shall attach immediately at such time as the condition causing such prohibition shall no longer exist and, to the extent severable, shall attach immediately to any portion of such asset that does not result in such prohibition, (ii) any Excluded Equity Interests, (iii) any motor vehicles owned or any other Secured Party liable assets subject to certificates of title, to the extent that a security interest therein cannot be perfected by the filing of a Uniform Commercial Code financing statement, (iv) any intent-to-use trademark application, (v) Letter-of-Credit rights to the extent that a security interest therein cannot be perfected by the filing of a Uniform Commercial Code financing statement and Commercial Tort Claims, in each case with a value, as reasonable determined by the Company, of less than $1,000,000, (vi) any governmental licenses or state or local franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby (other than to the extent that any such prohibition would be rendered ineffective pursuant to any other applicable Requirements of Law, including pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC), (vii) any leasehold interest to the extent that a security interest therein cannot be perfected by the filing of a Uniform Commercial Code financing statement, (viii) any foreign intellectual property; (ix) any assets to the extent that such security interests would result in material adverse tax consequences to the Company and its Subsidiaries, taken as a member whole, as reasonably determined in good faith by the Company and (x) any assets as to which the Administrative Agent and the Company reasonably determine that the costs of any limited liability company obtaining such security interests in such assets or as a partner perfection thereof are excessive in relation to the benefit to the Lenders of any partnership, neither the Collateral Agent nor any other Secured Party by virtue of this Agreement or otherwise security to be afforded thereby (except as the items referred to in clauses (i) through (x) above being collectively referred to as the following sentence) “Excluded Personal Property”); provided that Excluded Personal Property shall have not include any of the dutiesProceeds, obligations substitutions or liabilities of a member replacements of any limited liability company Excluded Personal Property (unless such Proceeds, substitutions 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 Personreplacements would constitute Excluded Personal Property).
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Affinia Group Intermediate Holdings 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 its Obligations and the Loan Obligations (other than contingent obligations)of each Covered BSC Entity, each Grantor Pledgor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, JPM and 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, (on its own behalf and as security for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwiseagent on behalf of each other JPM Party) 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 and interest in, to or interest in or to 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 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 “"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, now or hereafter existing, and all balances in any such Deposit Accounts;
(iv) any claim of any kind or nature of any Pledgor against any JPM Party;
(v) all Documents;
(vvi) all Equipment;
(vivii) all General Intangibles;
(vii) all Goods, including rights in respect of Financial Contracts, Lease Rights, personal property leases and other contractual entitlements;
(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 and, to the extent not otherwise constituting Investment Property, all Equity Interests, Pledged Debt Obligations, securities (whether certificated or uncertificated), security entitlements, securities accounts (and the contents thereof), commodity contracts and commodity accounts, money, certificates of deposit, commercial paper, instruments, financial assets, credits, claims, demands and precious metals (to the extent applicable, as the foregoing terms are used and defined in the New York UCC), in each case whether held by or through any JPM Party, The Depository Trust Company, any other securities intermediary, the Fed, any other Federal Reserve Bank or otherwise and in each case including any certificates or other documents evidencing the same and, subject to Article III, all rights and privileges of such Pledgor with respect to the same;
(xi) all Letter of Credit Rights;
(xii) all Commercial Tort Claims;
(xiii) all Intellectual Property;
(xiixiv) 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);
(xiiixv) 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 Proceedsand subject to Article III, all accessions to and substitutions and replacements for proceeds, products, accessions, substitutions, supporting obligations and products of any and all of the foregoing (including interest, dividends, cash, instruments and all offspringsother property from time to time received, rents profits and products receivable or otherwise distributed in respect of, in exchange for or upon the conversion of any of the foregoing foregoing) or of any other property of the Pledgors and all collateral security and guarantees given by any person with respect to any of the foregoing.
(b) , including all shares, securities, moneys or property representing a dividend on any of the foregoing, or representing a distribution or return of capital upon or in respect of any of the foregoing or otherwise received in exchange therefor, and any subscription warrants, rights or options issued to the holders or otherwise in respect thereof. Notwithstanding the foregoing or 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 Agreement,
(A) to the extent that the creation of the Security Interest on any specified portion of the Collateral (the "Restricted Collateral") to secure any specified portion of the Obligations (the "Restricted Obligations") would give rise to (x) an obligation or obligations under any contracts, agreements or instruments binding on any Pledgor or its property to provide an equal and ratable (or other) lien on the Restricted Collateral to secure liabilities of any Pledgor or Pledgors in an aggregate amount that is material to BSC and its Affiliates taken as a whole or (y) a default, event of default or similar condition however denominated that (with or without the lapse of time, the giving of notice or both) would permit (1) the holder of any indebtedness (or commitment to provide indebtedness) for borrowed money in an amount material to the applicable Pledgor to accelerate the maturity (or terminate the commitment to provide) thereof, or (2) the holder of any indebtedness for borrowed money to accelerate the maturity thereof if the effect of such acceleration would, in turn, be to permit the holder of any other indebtedness or counterparty(ies) to any Financial Contract(s) in an aggregate amount material to any of BSC or its Subsidiaries party to any affected Financial Contract to accelerate or terminate such indebtedness or Financial Contract(s), then, in any such case under (x) or (y), the Security Interest with respect to such Restricted Collateral shall not secure such Restricted Obligations to such extent (and shall secure such Restricted Obligations upon the removal or termination of the applicable agreement or condition under (x) or (y)). Without limitation of the generality of the foregoing, (aa) the Security Interest on any shares of Voting Stock of any Restricted Subsidiary (as such terms are defined, respectively, in the Indenture and the Note Issuance Agreement) shall not secure Obligations consisting of indebtedness for borrowed money until indebtedness outstanding under the Indenture and Note Issuance Agreement shall be repaid or defeased in full, and (bb) the Security Interest shall not extend to Equity Interests and other securities can secure if a lien thereon would violate Ownership Limitations for so long as the Senior Secured Notes and/or applicable agreement is in effect; and
(B) subject to the guarantees in respect thereof without Rule 3-10 or Rule 3-16 provisos of Regulation S-X under this paragraph, this Agreement shall not constitute a grant of a security interest in:
(i) any Letter of Credit Rights to the Securities Act (or extent any other law, rule or regulation) requiring separate financial statements Pledgor is required by applicable law to apply the proceeds of a drawing of such subsidiary to be filed with Letter of Credit for a specified purpose;
(ii) any property of any kind or nature the SEC (or granting of a security interest in which would constitute a breach of 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 of any Governmental Authority (including Equity Interests in Regulated Entities to the extent a pledge of such Equity Interests is adoptedso restricted);
(iii) any Deposit Account, Investment Property or other asset or property constituting (x) a segregated account maintained pursuant to Section 4d of the Commodity Exchange Act and Regulation 1.20 thereunder, (y) an account maintained by the Pledgor pursuant to Rule 15c3-3 under the Securities Exchange Act of 1934 (the "Exchange Act") as a "Special Reserve Account for the Exclusive Benefit of Customers" and (z) any account in which would require) JPM has waived, or in the filing future shall waive, in writing its lien in accordance with the SEC foregoing acts and regulations or otherwise in respect of customer securities of any of the Covered BSC Entities,
(iv) any Financial Contract, assets securing the obligations under a Financial Contract, or right therein to the extent that the pledge thereof would violate or otherwise give rise to an event of default under the applicable Financial Contract entitling the counterparty to the applicable Pledgor to terminate or close out (other than to the extent that any such right would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other governmental agencyapplicable law (including, without limitation, Title 11 of the United States Code) or principles of equity) such Financial Contract on account of the existence (without enforcement) of separate financial statements the Security Interest;
(v) any Pledgor's right, title or interest in any license, contract or agreement other than a Financial Contract to which such Pledgor is a party or any of any subsidiary of Holdings due its right, title or 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, under the terms of such license, contract or agreement, (i) result in a breach of the terms of, or constitute a default under, such license, contract or agreement that, in either case, would give rise to a loss or liability that would entirely offset the value of such license, contract or agreement, or (ii) result in the abandonment, invalidation or unenforceability of, such license, contract or agreement to which such Pledgor is a party (other than to the extent necessary to not be subject to such requirement) (that any such Equity Interests term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other securities, “Excluded Note Collateral”). In such event, the Security Documents may be amended or modifiedapplicable law (including, without the consent limitation, Title 11 of the Note TrusteeUnited States Code) or principles of equity); provided, that immediately upon the ineffectiveness, lapse or termination of any such provision, the Collateral Agentshall 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;
(vi) any Senior Secured Note Holder Equity Interest or other interest in Gregory/Madison Avenue LLC or its manager, Gregory/Madison ▇▇▇▇▇▇ Inc., or any holder asset of Other Pari Passu Lien Obligations, any type or na▇▇▇▇ ▇▇ Gregory/Madison Avenue LLC or Gregory/Madison Avenue Inc.;
(vii) ▇▇▇ ▇▇ase Right 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 ▇▇▇▇ ▇uch grant is not permitted under the terms of the Credit Agreement relevant Lease and this Agreement. In violates or causes a default thereunder, in either case that would entirely offset 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 value 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 Lease Right;
(but only viii) any asset that constitutes Margin Stock to the extent necessary to not be subject to any such financial statement requirement). In such event, that the granting of the Security Documents may Interest therein would violate or be amended or modifiedinconsistent with the provisions of Regulations T, without the consent of the Note Trustee, the Collateral Agent, any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, U and X;
(ix) to the extent necessary to applicable law requires that a Subsidiary of any Pledgor issue directors' qualifying shares, such shares or nominee or other similar shares; or
(x) any asset set forth on Schedule 7.19; provided, that any such asset shall immediately, without further act or deed, become subject to the Liens under Security Interest upon termination or lapse of the agreement or condition set forth above with respect to such asset; and provided, further that JPM shall in any event, except to the extent that the granting thereof would independently violate any of (i) through (vii) above, have and retain a lien in the proceeds of any such asset. With respect to any asset excluded from the Security Documents Interest pursuant to subsections (i) - (x) above, any lien purported to be granted hereunder in any such additional Equity Interests asset shall immediately and other securitiesautomatically, with no further act or deed become null and void ab initio. This Section 3.01(b) shall apply mutatis mutandis to Other Pari Passu Lien Obligations.
(c) Each Grantor Pledgor hereby irrevocably authorizes the Collateral Agent JPM 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 JPM 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 property". Each Grantor Pledgor agrees to provide such information to the Collateral Agent JPM 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 JPM 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 Grantorsuch Pledgor, and naming any Grantor such Pledgor or the Grantors Pledgors as debtors and the Collateral Agent JPM 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: Guarantee and Collateral Agreement (Bear Stearns Companies 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, 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.
(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 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 1 contract
Sources: 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, 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 1 contract
Sources: Credit Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Security Interest. (a1) 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”):): -15- 155657.01206/121709896v.5
(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 Deposit Accounts;
(d) all Documents;
(ve) all Equipment;
(vif) all General Intangibles;
(viig) all Goods;
(viiih) all Instruments, including all Pledged Securities;
(ixi) 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 books and records pertaining to the Article 9 Collateral;
(l) all Intellectual Property;
(xiim) all Pledged CollateralCommercial Tort Claims listed on Schedule III and on any supplement thereto received by the Agent pursuant to Section 3.03(h);
(xiiin) all Records and all books and records pertaining to the Collateralletter-of-credit rights;
(xivo) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;
(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
(xixp) 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.
(2) 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 -16- 155657.01206/121709896v.5 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.
(e3) 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.
(4) 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.
(5) 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) 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; (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; (j) Collateral IP; 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.
3.2 Notwithstanding the broad grant of the security interest set forth in Section 3.1, above, the Collateral shall not include (bi) Notwithstanding anything more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary which shares entitle the holder thereof to the contrary in this Agreement vote for directors or any other Senior Secured Note Documentmatter, (ii) Borrower’s equity interests in Novvi LLC, Aprinnova, LLC, and Total Amyris Biosolutions B.V. and Borrower’s interest in any other joint venture existing on 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 date hereof 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 pledging 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 is amended, modified or interpreted prohibited by the SEC relevant agreements, (iii) equity interests in the joint ventures referred to require in clauses (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would requirexii) the filing with the SEC and (or any other governmental agencyxiii) of separate financial statements the definition 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 Permitted Investments to the extent necessary that the pledging of such interests is prohibited by the relevant joint venture or operating agreements and (iv) any Excluded Intellectual Property.
3.3 Parent shall, as security for the Secured Obligations, cause each Subsidiary Guarantor to not be subject grant to Lender a security interest in all of such Subsidiary Guarantor’s assets pursuant to such requirement) (any such Equity Interests or other securities, “Excluded Note Collateral”). In such event, the Security Documents as Lender 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 Obligationsrequire.
(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, 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 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 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 ; 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 Document, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any 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 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 by or arising in favor of” 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 Collateral Agent agreesshall provide reasonable written notice to the Company of all such filings made by the Collateral Agent on or about the Amendment No. 1 Closing Date, and, reasonably promptly thereafter, any subsequent filings or amendments, supplements or terminations of existing filings, made from time to time thereafter and, in each case, shall, upon the reasonable request by of the Borrower and at the Borrower’s expenseCompany, to promptly furnish copies of such filings provide to the BorrowerCompany 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 1 contract
Sources: Credit Agreement (Fuller H B 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, 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 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 EquipmentDocuments;
(vi) all General IntangiblesEquipment;
(vii) all GoodsFixtures;
(viii) all Instruments, including General Intangibles and 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 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 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 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 Article 9 Collateral. Nothing contained .
(d) The Collateral Agent is authorized to file with the USPTO or the USCO (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 in this Agreement shall be construed to make United States Intellectual Property granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantor as debtors and the Collateral Agent as secured party.
(e) Notwithstanding anything to the contrary in the Loan Documents, none of the Grantors shall be required (i) to enter into any deposit account control agreement or securities account control agreement with respect to any other Secured Party liable as a member deposit account or securities account, (ii) to take any action in any non-U.S. jurisdiction or required by the Laws of any limited liability company non-U.S. jurisdiction to create any security interest in any assets located or as a partner titled outside of the U.S. or to perfect or make enforceable any security interests in any assets located outside of the U.S. (it being understood that nothing herein shall require security agreements or pledge agreements governed by the laws of any partnership, neither the Collateral Agent nor non-U.S. jurisdiction) any other Secured Party by virtue of this Agreement or otherwise (except as referred to in the following sentence) shall have any assets located outside of the duties, obligations United States or liabilities of a member of any limited liability company or as a partner (iii) to perfect in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become the owner assets subject to a certificate 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 Persontitle statute.
Appears in 1 contract
Sources: Security Agreement (Global Cash Access 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, 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 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 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 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 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 1 contract
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 (a) more than 65% of the presently existing and hereafter arising issued and outstanding shares of capital stock owned by Borrower of any Foreign Subsidiary (other than an Eligible Foreign Subsidiary) which shares entitle the holder thereof to vote for directors or any other matter, (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 Intellectual Property except to the extent that such Equity Interests and other securities can secure the Senior Secured Notes and/or the guarantees described in respect thereof without Rule 3-10 Section 3.1 above, (c) nonassignable licenses 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 such prohibition on transfer is enforceable under applicable law, including, without limitation, Sections 9406, 9407 and 9408 of the UCC), and (d) any leasehold real property interest, license, lease or other contract or agreement or any property subject to such requirement) (any such Equity Interests a purchase money security interest 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, similar arrangement to the extent necessary to release the first-priority that a grant of a security interests in the shares interest therein would violate or invalidate such lease, license, contract or agreement or purchase money arrangement or create a right of Equity Interests and other securities that are so deemed to no longer constitute part of the Collateral securing the Note Obligations termination 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 thereto (but only to the extent necessary to not be subject to any such financial statement requirement). In such eventprohibition on transfer or grant of a security interest is enforceable under applicable law, the Security Documents may be amended or modifiedincluding, without the consent limitation, Sections 9406, 9407 and 9408 of the Note TrusteeUCC), the Collateral Agent, (e) any Senior Secured Note Holder or any holder of Other Pari Passu Lien Obligations, property to the extent necessary that, and for as long as, such grant of a security interest is prohibited by any applicable law, rule or regulation; provided that the foregoing exclusion in this clause (e) shall in no way be construed (i) to apply to the extent that any described prohibition is unenforceable under Section 9406, 9407 or 9408 of the UCC or other applicable law or (ii) 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 on the grant of a security interest in such property (f) Excluded Accounts, (g) motor vehicles or other assets in which a security interest may be perfected only though compliance with a certificate of title statute, (h) any property subject to the Liens under the Security Documents such additional Equity Interests Sanofi Agreement as disclosed on Schedule 3.2 hereto, 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 BorrowerCash securing reimbursement obligations permitted under this Agreement.
(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 (X4 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, 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)Obligations, each Grantor hereby confirms the pledge pledges and grant assigns, to the Collateral Agent, acting as agent for the Secured Parties, its successors and permitted assigns of the security interest of the Original Guarantee and Collateral Agreementin such capacity, 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, acting as agent for the Secured Parties, its successors and permitted assignsassigns in such capacity, 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 identified on Schedule V (as such Schedule may be supplemented from time to time in accordance with the terms hereof);
(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. Further, no Grantor shall be required to take any action with respect to the grant or perfection of any Security Interest in contravention of Section 5.09 of the Credit Agreement.
(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. Without limiting the foregoing, each Grantor hereby ratifies any financing statement filed prior to the date hereof in connection with the Existing Collateral Agreement, and acknowledges, confirms and agrees that any financing statements covering all or any part of the Collateral previously filed in favor of the Collateral Agent under the Existing Collateral Agreement are and shall continue to be in full force and effect with respect to the Collateral under this Agreement.
(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 1 contract
Sources: Amendment and Restatement Agreement (Energizer 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)Canadian Obligations, including the Canadian 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 present and after acquired personal property of such Grantor, which includes, 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 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 “PPSA 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 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 PPSA Collateral;
(xii) all Pledged CollateralFixtures;
(xiii) all Records and all books and records pertaining to the CollateralLetter-of-Credit Rights;
(xiv) all letters of credit under which such Grantor is the beneficiary and Letter of Credit Rights;Intellectual Property; 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 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 “PPSA Collateral” shall not include any Excluded Assets.
(b) The Security Interest with respect to Trademarks constitutes a security interest in, the Equity Interests and other securities of any direct or indirect subsidiary of Holdings that are owned by any Grantor will constitute a charge, hypothecation and pledge of, such PPSA 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 favour 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 Parties, but does not constitute an assignment or mortgage of such PPSA Collateral to 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, Collateral Agent 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 ObligationsParty.
(c) Each Grantor agrees that, in the event any Grantor, pursuant to any Pari Cash Flow Debt Document (as defined in the ABL Intercreditor Agreement), takes any action to grant or perfect a Lien in favor of any Pari Cash Flow Debt Agent (as defined in the ABL Intercreditor Agreement) in any assets, such Grantor shall also take such action to grant or perfect a Lien (subject to the ABL Intercreditor Agreement) in favor of the Collateral Agent to secure the Canadian Obligations without request of the Collateral Agent, including with respect to any property and real property in which any Pari Cash Flow Debt Agent directs a Grantor to grant or perfect a Lien or take such other action under any Pari Cash Flow Debt Document.
(d) Subject to Section 3.01(0, each Grantor hereby irrevocably authorizes the Collateral 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 (including fixture filings) or financing change statements with respect to the PPSA Collateral or any part thereof and amendments thereto that (i) indicate the PPSA Collateral as “all assets” or “all present and after acquired 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 the PPSA, Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement, financing change 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.
(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 in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out of the PPSA Collateral.
(f) The Collateral Agent is authorized to file with the USPTO, the USCO or CIPO (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 in Intellectual Property of each Grantor in which a security interest has been granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantor as debtors and the Collateral Agent as secured party. Nothing contained in this Agreement No Grantor shall be construed required to make complete any filings or other action with respect to the perfection of the Security Interests created hereby in any Intellectual Property subsisting in any jurisdiction outside of the United States or Canada.
(g) 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 Security 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), and filings in the applicable real estate records with respect to any fixtures relating to Mortgaged Properties, (B) filings in United States government offices with respect to Intellectual Property of the Grantors as expressly required elsewhere herein, (C) filings pursuant to the PPSA in the registry of the relevant provinces(s), and filings in the applicable real estate records with respect to any fixtures relating to Mortgaged Properties, (D) filings in CIPO with respect to Intellectual Property of the Grantors as expressly required elsewhere herein, (E) delivery to the Collateral Agent or any other Secured Party liable the Controlling Cash Flow Debt Agent, as a member applicable, to be held in its possession 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 all Collateral consisting of a limited liability company interest Instruments and certificated Pledged Equity as expressly required elsewhere herein or a partnership interest pursuant hereto(F) other methods expressly provided herein, this Agreement shall not be construed as creating a partnership (ii) to enter into any deposit account control agreement, securities account control agreement or joint venture among the Collateral Agent, any other Secured Partycontrol agreement with respect to any deposit account, any Grantor and/or securities account or any other PersonCollateral that requires perfection by “control,” other than as required by Section 6.18 of the Credit Agreement or Section 3.03(h) hereof and other than with respect to uncertificated securities to the extent provided in Section 2.04, (iii) to take any action (other than the actions listed in clauses (iXA) through (E) above) with respect to any assets located outside of the United States or Canada, (iv) to perfect in any assets subject to a certificate of title statute or (v) to deliver any Equity Interests except as expressly provided in Section 2.01 or Section 2.04.
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) 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)First Lien Obligations, each Grantor hereby confirms the pledge assigns and grant pledges to the Collateral Agent, its successors and permitted assigns (on behalf of each of the security interest of the Original Guarantee and Collateral AgreementAdministrative Agent, for the ratable benefit of the Loan Bank Secured Parties, and as security the Trustee, for the payment or performance, as the case may be, in full when due (whether at stated maturity, by acceleration or otherwise) ratable benefit of the Obligations Notes Secured Parties and the Authorized Representative (other than contingent obligationsif any), each Grantor for the ratable benefit of the Additional First Lien Secured Parties (if any)), and hereby pledges and grants to the Collateral Agent, its successors and permitted assignsassigns (on behalf of each of the Administrative Agent, for the ratable benefit of the Bank Secured Parties, the Trustee, for the ratable benefit of the Notes Secured Parties and the Authorized Representative (if any), for the ratable benefit of the Additional First Lien Secured Parties (if any)), 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 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 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;
(xiv) provided, however, that notwithstanding any of the other provisions set forth in this Article III, in no event shall the security interest granted under this Article III attach to any Excluded 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 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 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 (on behalf of each of the Administrative Agent, for the ratable benefit of the Bank Secured Parties, the Trustee, for the ratable benefit of the Notes Secured Parties and the Authorized Representative (if any), for the ratable benefit of the Additional First Lien Secured Parties (if any)), 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. (ai) As security for To secure the prompt payment or performance, as the case may be, and performance in full when due (due, whether at stated maturityby lapse of time, by acceleration or otherwise) , of all of the obligations of the Company under the Loan Obligations Documents (other than contingent obligationsthe “Obligations”), each Grantor the Company 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, Buyer a continuing security interest in in, and a right to set off against, any and all right, title or and interest of the Company 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 existing or owned, acquired, or arising 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”):
(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;
(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;
(xvi2) all cash and cash equivalents;
(xvii3) all Chattel Paper (including Electronic Chattel Paper);
(4) all Contract Rights;
(5) 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;
(xviii6) all Documents;
(7) all Equipment;
(8) all Financial Assets;
(9) all Fixtures;
(10) all General Intangibles;
(11) all Goods;
(12) all Instruments (including, without limitation, all promissory notes and certificated securities);
(13) all Inventory;
(14) all Investment Property;
(15) all Letter-of-Credit Rights;
(16) all Payment Intangibles;
(17) all Software;
(18) all Supporting Obligations;
(19) all books, records, ledger cards, files, correspondence, computer programs, tapes, disks, and related data processing software (owned by the Company or in which it has an interest) that at any time evidence or contain information relating to any Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon;
(20) all other personal property of any kind or type whatsoever of such Grantorowned by the Company; the Company; and
(xix21) all capital stock of LipimetiX (as defined below) owned by
(22) 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 foregoing. Notwithstanding the foregoing, the Buyer’s security interest in the capital stock of LipimetiX granted hereunder shall not be effective unless and all offspringsuntil the Buyer executes and delivers to the Company a joinder to the Stockholders Agreement dated, rents profits as of June 23, 2015, by and products among LipimetiX and the stockholders named therein, agreeing to be bound by the terms of such agreement. Notwithstanding the foregoing, in no event shall the Collateral include, and the Company shall not be deemed to have granted a security interest in, any of its rights or interests in any license, contract or agreement to which 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 DocumentCompany is a party, 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 but 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 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 license, contract or agreement, result in a breach of the SEC terms thereof or constitute a default thereunder. The parties hereto hereby acknowledge and agree that the security interest created hereby in the Collateral constitutes continuing collateral security for all of the Obligations, whether now existing or hereafter arising.
(or ii) The Company covenants that, so long as any other governmental agency). In of the event that Rule 3-10 or Rule 3-16 of Regulation S-X under Obligations remain outstanding, 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 Company will execute and deliver to the fact that Buyer and/or file such subsidiary’s Equity Interests agreements, assignments or instruments and do all such other securities secure things as the Senior Secured Notes and/or the related guarantees, then the Equity Interests and other securities of such subsidiary shall automatically be deemed not Buyer may reasonably deem necessary or appropriate (a) to be part of the Collateral securing the Note Obligations in favor of the Note Secured Parties (but only assure to the extent necessary to not be subject to Buyer its security interests hereunder are perfected, including such requirementfinancing statements (including continuation statements) (any such Equity Interests or amendments thereof or supplements thereto or other securities, “Excluded Note Collateral”). In such event, instruments as the Security Documents Buyer may be amended or modified, without from time to time reasonably request in order to perfect and maintain 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 granted hereunder in accordance with the terms of the Credit Agreement UCC 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 lawpersonal property security legislation in the appropriate state(s) or jurisdiction(s), rule or regulation is adopted, which would permitand (b) such subsidiary’s Equity Interests to otherwise protect and other securities to secure assure the Senior Secured Notes and/or the related guarantees in excess Buyer 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 its rights 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)interests hereunder. 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 The Company hereby authorizes the Collateral Agent at any time Buyer to prepare and file such financing statements (including continuation statements) or amendments thereof or supplements thereto or other instruments as the Buyer may from time to time deem necessary or appropriate in order to file perfect and maintain the security interests granted hereunder in any relevant jurisdiction any financing statements (including fixture filings) accordance 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 BorrowerUCC.
(diii) 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 Company covenants that, so long 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 dutiesObligations remain outstanding, obligations or liabilities of a member of any limited liability company or as a partner the Company will defend its interests in any partnership. The parties hereto expressly agree that, unless the Collateral Agent shall become against the owner claims and demands of Pledged Collateral consisting of a limited liability company all other parties claiming an interest or a partnership interest pursuant hereto, this Agreement shall not be construed as creating a partnership or joint venture among therein and keep the Collateral Agentfree from all Liens, except for the security interests granted hereunder and for Permitted Liens (as defined herein). “Lien” shall mean any mortgage, security interest, lien, claim, charge, encumbrance on, pledge or deposit of, or conditional sale or other title retention agreement with respect to, any other Secured Party, any Grantor and/or any other Personproperty (real or personal) or asset.
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)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 property or assets owned by any other Senior Secured Note DocumentForeign Subsidiaries, (b) Excluded Equity; (c) any debt securities issued to a Pledgor having, in the Equity Interests and other case of each instance of debt securities, an aggregate principal amount not in excess of $5.0 million; (d) any 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 Company’s Subsidiaries to the extent that a pledge of such Equity Interests and other securities can to secure any of the Senior Secured Notes and/or would require the guarantees in respect thereof without Rule 3-10 or filing of financial statements pursuant to Rule 3-16 of Regulation S-X X; (e) any vehicle covered by a certificate of title or ownership; (f) the Bucksport Co-Gen Assets; (g) any assets acquired after the Issue 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 clause (b)(iv) of Section 4A.03 and 4B.03 of the Indenture or any equivalent exception in any other Note Document that is secured by a Permitted Lien); (h) 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; and (i) any Pledgor’s right, title or interest in any license, contract or agreement to which such Pledgor is a party to the extent that such a grant would, under the Securities Act 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 such license, contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the New York Uniform Commercial Code or any other lawapplicable law (including, rule without limitation, the Bankruptcy 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
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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).
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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.
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