Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the 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 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 (collectively, the “Article 9 Collateral”): (i) all Accounts; (ii) all Chattel Paper; (iii) all Deposit Accounts; (iv) all Documents (other than title documents relating to vehicles); (v) all Equipment; (vi) all General Intangibles; (vii) all Instruments; (viii) all Inventory; (ix) all Investment Property; (x) Letter-of Credit Rights; (xi) Commercial Tort Claims described in Schedule IV; (xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section); (xiii) all books and records; and (xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing; (b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds. (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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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. (d) The Security Interest is granted as security only 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.
Appears in 5 contracts
Sources: Collateral Agreement (American Media Inc), Collateral Agreement (Ami Celebrity Publications, LLC), Collateral Agreement (Ami Celebrity Publications, LLC)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, including the Guarantees, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, in and lien on all right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit AccountsCommercial Tort Claims listed on Schedule II hereto;
(iv) all Documents (other than title documents relating to vehicles)Deposit Accounts;
(v) all Documents;
(vi) all Equipment;
(vivii) all General Intangibles;
(viiviii) all Goods;
(ix) all Instruments;
(viiix) all Inventory;
(ixxi) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above books and any property specifically excluded from any defined term used in any clause of this section);records pertaining to the Article 9 Collateral; and
(xiii) all books and records; and
(xiv) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all supporting obligations, collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, ; provided that notwithstanding anything herein to the contrarycontrary in this Agreement, in no event this Agreement shall the not constitute a grant of a security interest granted hereunder attach toin any Excluded Asset (which Excluded Assets, nor for the terms avoidance of doubt, shall not constitute “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity”), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(cb) 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) 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, whether now owned or hereafter acquired Grantor or words of similar 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 (aA) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, a sufficient description of the real property to which such Article 9 Collateral relates; provided, however, that the right of the Collateral Agent to file financing statements hereunder shall not be construed as a duty to do so. Each Grantor agrees to provide such information to the Collateral Agent promptly upon any reasonable request. Each Grantor also ratifies its authorization shall file on behalf of the Collateral Agent, for the Collateral Agent to file benefit of the Secured Parties, any financing statements in any the relevant jurisdiction any initial financing statements or amendments thereto if filed prior necessary to perfect the date hereof. The security interests in the Article 9 Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office 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 partyhereunder.
(dc) The Security Interest is granted as security only 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.9
Appears in 5 contracts
Sources: Pledge and Security Agreement (Sabre Corp), Pledge and Security Agreement, Pledge and Security Agreement (Sabre Corp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, including the Senior Guarantees, each Grantor hereby assigns and pledges to the Collateral Administrative Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Administrative Agent, its successors and assigns, for the 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 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 (collectively, the “Article 9 Collateral”):
(i) all AccountsCopyrights;
(ii) all Chattel PaperPatents;
(iii) all Deposit AccountsTrademarks;
(iv) all Documents (other than title documents relating to vehicles)Licenses;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment other Intellectual Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xivvi) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, ; provided that notwithstanding anything herein to the contrarycontrary in this Agreement, in no event this Agreement shall the not constitute a grant of a security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) in any contract or agreement to which Intellectual Property of a Grantor is a party arising under or evidenced by any of its rights contract, lease, instrument, license or interests thereunder other document if and for so long as (but only to the extent that) the grant of such a security interest shall therein would (x) constitute a violation of a valid and enforceable restriction in respect of such Intellectual Property in favor of a third party or result in (i) the unenforceability under any law, regulation, permit, order or decree of any right Governmental Authority, unless and until all required consents shall have been obtained (for the avoidance of doubt, the Grantor therein restrictions described herein are not negative pledges or similar undertakings in favor of a lender or other financial counterparty) or (iiy) expressly give any other party in a breach or termination pursuant to the terms of, or a default under, respect of any such contract contract, lease, instrument, license or agreement (other than document, the right to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity)terminate its obligations thereunder, provided, however, that such the limitation set forth in this proviso above shall not affect, limit, restrict or impair the grant by a Grantor of a security interest shall attach immediately at pursuant to this Agreement in any such time as the condition causing such unenforceability shall be remedied and, Collateral to the extent severablethat an otherwise applicable prohibition or restriction on such grant is rendered ineffective by any applicable law, including the UCC. Notwithstanding any provision of this Agreement to the contrary, the Security Interest shall attach immediately not include any application for a Trademark that would be deemed invalidated, canceled or abandoned due to any portion the grant and/or enforcement of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) Security Interest, including, without limitation, any proceeds all United States Trademark applications that are based on an intent-to-use, unless and until such time that the grant and/or enforcement of the Security Interest will not affect the status or validity of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.Trademark
(cb) 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 (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, whether now owned or hereafter acquired or words of similar 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 (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 relatesGrantor. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 or any similar office office) a short form intellectual property agreement in any the form attached hereto as Exhibit II and such 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. Upon reasonable request, each Grantor agrees to promptly execute and deliver or otherwise authenticate such documents.
(dc) The Security Interest is granted as security only 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 Article 9 Collateral.
Appears in 4 contracts
Sources: Credit Agreement (West Corp), Credit Agreement (West Customer Management Group, LLC), Intellectual Property Security Agreement (West Corp)
Security Interest. (a) 3.1 As security for the prompt and complete payment when due (whether on the payment dates or performance, as otherwise) of all the case may be, in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby Borrower grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, Agent a security interest (the “Security Interest”) in all of Borrower’s right, title, and interest in, all right, title or interest in or to any and under all of Borrower’s personal property and other assets including without limitation the following assets and properties (except as set forth herein) 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, title or interest (collectively, the “Article 9 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) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) Goods; and all other tangible and intangible personal property (other than leasehold interests 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 real property) the possession or under the control of Agent; and, to the extent not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) included, all Proceeds and products of any and all Supporting Obligations each of the foregoing and all collateral security accessions to, substitutions and guarantees given by any Person with respect to any replacements for, and rents, profits and products of each of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), ; provided, however, that such 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 attach immediately at such time automatically, and effective as of the condition causing such unenforceability shall be remedied anddate of this Agreement, include the Intellectual Property to the extent severable, shall attach immediately necessary to any portion permit perfection of such contract or agreement that does not result Agent’s security interest in any the Rights to Payment.
3.2 Notwithstanding the broad grant of the consequences specified security interest set forth in Section 3.1, above, the Collateral shall not include (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (Ba) more than 65% of the presently existing and hereafter arising issued and outstanding voting Equity Interests 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 Equity Interests in any Person that is not a wholly-owned Subsidiary whereother matter and (b) nonassignable licenses or contracts, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without which by their terms require the consent of the equity holders of such Person licensor thereof or another party (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture but only to the extent such prohibition on transfer is enforceable under applicable law, including, without limitation, Sections 9406, 9407 and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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, whether now owned or hereafter acquired or words of similar effect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 9408 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 partyUCC).
(d) The Security Interest is granted as security only 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.
Appears in 4 contracts
Sources: Loan and Security Agreement (Tricida, Inc.), Loan and Security Agreement (Tricida, Inc.), Loan and Security Agreement (Tricida, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full and performance of the ObligationsObligations (as defined in the New Security Agreement), each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and Company hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the each Secured Parties, Party a security interest (in and mortgage to all of the “Security Interest”) in, all Company’s right, title or and interest in or in, to any and all of under the following assets and properties property, whether now existing or owned or at any time hereafter acquired by such Grantor acquired, developed or in which such Grantor now has or at any time in arising during the future may acquire any right, title or interest term of this Agreement (collectively, the “Article 9 Intellectual Property Collateral”):
(i) all Accountspatents and patent applications, domestic or foreign, all licenses relating to any of the foregoing and all income and royalties with respect to any licenses (including, without limitation, such patents and patent applications as described in Schedule A hereto), all rights to s▇▇ for past, present or future infringement thereof, all rights arising therefrom and pertaining thereto and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof;
(ii) all Chattel Paper;state (including common law), federal and foreign trademarks, service marks and trade names, URLs and domain names, and applications for registration of such trademarks, service marks and trade names, URLs and domain names, all licenses relating to any of the foregoing and all income and royalties with respect to any licenses (including, without limitation, such marks, names and applications as described in Schedule B hereto), whether registered or unregistered and wherever registered, all rights to s▇▇ for past, present or future infringement or unconsented use thereof, all rights arising therefrom and pertaining thereto and all reissues, extensions and renewals thereof; and
(iii) all Deposit Accountsthe entire goodwill of or associated with the businesses now or hereafter conducted by the Company connected with and symbolized by any of the aforementioned properties and assets;
(iv) all Documents general intangibles (other than title documents relating to vehiclesas defined in the UCC);; and
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above products and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products proceeds of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;.
(b) provided, that notwithstanding anything herein to the contrary, in no event This Agreement shall the create a continuing security interest granted hereunder attach toin the Intellectual Property Collateral which shall remain in effect until terminated in accordance with Section 16 hereof.
(c) Notwithstanding the foregoing provisions of this Section 1, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 a security interest as provided herein shall constitute not extend to, and the term “Intellectual Property Collateral” shall not include, any general intangibles of the Company (whether owned or result in held as licensee or lessee, or otherwise), to the extent that (i) such general intangibles are not assignable or capable of being encumbered as a matter of law or under the unenforceability of any right terms of the Grantor therein license, lease or other agreement applicable thereto (ii) in a breach or termination pursuant to the terms of, or a default under, any such contract or agreement (other than but solely to the extent that any such term would restriction shall be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other enforceable under applicable law or principles of equitylaw), provided, however, 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 agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower licensor or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds lessor thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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 applicable party thereto that (i) indicate the Collateral as all assets of such Grantor, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 partyconsent has not been obtained.
(d) The Security Interest is granted as security only 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.
Appears in 4 contracts
Sources: Patent and Trademark Security Agreement (Technology Visions Group Inc), Patent and Trademark Security Agreement (Sutura, Inc.), Patent and Trademark Security Agreement (Sutura, Inc.)
Security Interest. (a) As Subject to the terms of the Acknowledgment Agreements (as applicable) and the subordination described in Section 2.18, Section 2.19 and Section 2.20, the Borrower hereby grants, pledges and assigns to the Administrative Agent (on behalf of and for the ratable benefit of each Secured Party) as security for the payment or performance, as and performance by the case may be, in full Borrower of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (in all of the “Security Interest”) in, all Borrower’s right, title and interest in, to and under, in any case, whether now held or interest in hereafter acquired (i) all ▇▇▇▇▇▇ ▇▇▇ MSRs; (ii) all ▇▇▇▇▇▇▇ Mac MSRs; (iii) all ▇▇▇▇▇▇ ▇▇▇ MSRs; (iv) the Borrower’s rights (but not its obligations) under the Transaction Documents including without limitation, any rights to receive payments thereunder or any rights to any collateral thereunder whether now held or hereafter acquired, now existing or hereafter created; (v) all collateral however defined or described under the Transaction Documents to the extent not otherwise included above; (vi) all Related Security; (vii) all Records relating to and all proceeds of the following assets foregoing (collectively, (i)-(vii), the “MSR Collateral”), and properties 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 (viii) all Additional Collateral (collectively, the “Article 9 Borrower Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, that notwithstanding . Notwithstanding anything herein to the contrary, in no event the term “Borrower Collateral” shall not include, and the grant, pledge and assignment of a security interest granted hereunder attach tocontained in this Section 2.17 shall not include a security interest in any Excluded Collateral.
(b) Additionally, nor the terms “Article 9 Collateral” or “Pledged Stock” include Guarantor hereby grants, pledges and assigns to the Administrative Agent (A) any contract or agreement to which a Grantor is a party or any on behalf of its rights or interests thereunder if and for so long the ratable benefit of each Secured Party) as security for the grant payment and performance by the Borrower of such the Obligations and the Guarantor of the Guaranteed Obligations, a security interest shall constitute or result in (i) the unenforceability of any right all of the Grantor therein Guarantor’s right, title and interest in, to and under, in any case, whether now owned or hereafter acquired, all Additional Guarantor Collateral (ii) in a breach together with the Borrower Collateral, the “Collateral”). For the avoidance of doubt, each grant, pledge, or termination pursuant assignment of the Collateral hereunder shall, subject to the terms ofrights of ▇▇▇▇▇▇▇ Mac under the ▇▇▇▇▇▇▇ Mac Acknowledgment Agreement, or a default under, any such contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 include all of the New York UCC or any other applicable law or principles of equity)Borrower’s and Guarantor’s rights, providedbut not its obligations, however, that with respect to 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 agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedsCollateral.
(c) The parties acknowledge that the Agencies have certain rights under the Acknowledgment Agreements and the Servicing Contracts (as applicable), including the right to cause the Borrower to transfer servicing to a transferee servicer under certain circumstances as more particularly set forth therein and to terminate the Borrower, with or without cause. The transferee servicer shall have all the rights and remedies against the Borrower and the Collateral as set forth herein and under the UCC.
(d) Each Grantor hereby irrevocably of the Borrower and the Guarantor will promptly, at its respective expense, execute and deliver such instruments, financing and continuation statements and documents and take such other actions as the Administrative Agent may reasonably request from time to time in order to perfect, protect, evidence, exercise and enforce the Administrative Agent’s and each Lender’s interests, rights and remedies under and with respect to the Transaction Documents, the Advances and the Collateral. To the extent the Borrower or the Guarantor has filed or caused the filing of any document as provided above, the Borrower or the Guarantor, as applicable, shall deliver to the Administrative Agent file-stamped copies of, or filing receipts for, any document recorded, registered or filed as provided above, as soon as available following such recording, registration or filing.
(e) If the Borrower fails to perform any of its Obligations, then the Administrative Agent may (but shall not be required to) perform or cause to be performed such Obligation, and the costs and expenses incurred by the Administrative Agent in connection therewith shall be payable by the Borrower. Without limiting the generality of the foregoing, if the Borrower fails to perform any of its Obligations, the Borrower authorizes the Collateral Administrative Agent, at the option of the Administrative Agent and the expense of the Borrower, at any time and from time to time time, to take all actions and pay all amounts that the Administrative Agent reasonably deems necessary or appropriate to protect, enforce, preserve, insure, service, administer, manage, perform, maintain, safeguard, collect or realize on the Collateral, including the right to liquidate the Collateral, and the Administrative Agent’s Liens and interests therein or thereon and to give effect to the intent of the Transaction Documents. No Potential Event of Default or Event of Default shall be cured by the payment or performance of any Obligation by the Administrative Agent on behalf of the Borrower. The Administrative Agent may make any such payment in accordance with any ▇▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such ▇▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, Tax Lien, title or claim except to the extent such payment is being contested in good faith by the Borrower in appropriate proceedings and against which adequate reserves are being maintained in accordance with GAAP.
(f) Upon termination of this Agreement and payment in full of all Obligations (other than contingent obligations not then due), Administrative Agent shall release its security interests in the Collateral and promptly file in any relevant jurisdiction any initial financing termination 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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed pursuant to this Section 2.17 and take such other action as a fixture may reasonably be requested by the Borrower or Guarantor to evidence such release. If evidence of filing such termination statements has not been delivered to the Borrower or covering Article 9 Collateral constituting minerals Guarantor, as applicable, within ten (10) days of termination of this Agreement and payment in full of all Obligations (other than contingent obligations not then due), the Administrative Agent hereby authorizes the Borrower or the like to be extracted or timber to be cutGuarantor, 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 request. Each Grantor also ratifies its authorization for the Collateral Agent as applicable, to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 partytermination statements.
(d) The Security Interest is granted as security only 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.
Appears in 4 contracts
Sources: Credit Agreement (Home Point Capital Inc.), Credit Agreement (Home Point Capital Inc.), Credit Agreement (Home Point Capital Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Administrative Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, 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 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 (collectively, the “Article 9 Collateral”):
(iI) all Accounts;
(iiII) all Chattel Paper;
(iiiIII) all Cash and Deposit Accounts;
(ivIV) all Documents (other than title documents relating to vehicles)Documents;
(vV) all Equipment;
(viVI) all General Intangibles, including all Intellectual Property;
(viiVII) all Instruments;
(viiiVIII) all Inventory;
(ixIX) all other Goods and Fixtures;
(X) all Investment Property;
(xXI) all Letter-of of-Credit Rights;
(xiXII) all Commercial Tort Claims specifically described in on Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded IV hereto, as such schedule may be supplemented from any clause in this section above and any property specifically excluded from any defined term used in any clause of this sectiontime to time pursuant to Section 3.04(d);
(xiiiXIII) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xivXIV) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, ; provided that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder Security Interest attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include to (A) any lease, license, contract or agreement to which a Grantor is a party or any of its rights or interests thereunder if if, to the extent and for so long as the grant of such security interest shall constitute or result in (i) the unenforceability of any right of the Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract or agreement (other than to the extent that any such term would be rendered ineffective ineffective, or is otherwise unenforceable, pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles Requirement of equityLaw), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and; provided that, to the extent severable, the Security Interest shall attach immediately to any portion of such lease, license, contract or agreement that does not result in any of the consequences specified in (i) such breach, termination or (ii) includingdefault, without limitation, including any proceeds Proceeds of such lease, license, contract or agreement, ; (B) more than 65% any motor vehicle or other asset covered by a certificate of the issued and outstanding voting Equity Interests of any Foreign Subsidiary title or any Equity Interests in any Person that is not a wholly-ownership, whether now owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Personhereafter acquired, the grant perfection of such security interest or lien which is prohibited or prohibited without excluded from the consent of UCC in the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof)relevant jurisdiction; and (C) assets any asset owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are is subject to a Lien securing Indebtedness of the type permitted to be by Section 6.02(iv) of the Credit Agreement (whether or not incurred pursuant to such Section) or a Lien permitted by Section 4.09(b)(46.02(xi) of the Indenture Credit Agreement (other than to the extent that any such term would be rendered ineffective, or is otherwise unenforceable, pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable Requirement of Law), in each case if, to the extent and for so long as the contract grant of a Lien thereon hereunder to secure the Secured Obligations constitutes a breach of or other a default under any agreement in pursuant to which such Lien has been created; provided that the Security Interest shall attach immediately to any such asset (x) at the time the provision of such agreement containing such restriction ceases to be in effect and (y) to the extent any such breach or default is granted not rendered ineffective by, or is otherwise unenforceable under, any Requirements of Law; (D) any asset owned by any Grantor with respect to which Holdings shall have provided to the Administrative Agent a certificate of a Financial Officer to the effect that, based on advice of outside counsel or the documentation providing for such Indebtedness) validly prohibits tax advisors of national recognition, the creation of such security interest in such asset hereunder would result in adverse tax consequences to Holdings and the Subsidiaries (other than on account of any Taxes payable in connection with filings, recordings, registrations, stampings and any similar acts in connection with the creation or perfection of the Liens granted hereunder) that shall have been determined by Holdings to be material to Holdings and the Subsidiaries; (E) any asset owned by any Grantor if, to the extent and for so long as the grant of such security interest in such asset shall be prohibited by any applicable Requirements of Law (other than to the extent that any such prohibition would be rendered ineffective pursuant to the New York UCC or any other Lien applicable Requirements of Law); provided that the Security Interest shall attach immediately to such asset at such time as such prohibition ceases to be in effect; (F) any asset owned by any Grantor that the Parent Borrower and the Administrative Agent shall have agreed in writing to exclude from being Article 9 Collateral on account of the cost of creating a security interest in such assets asset hereunder (including any adverse tax consequences to Holdings and proceedsthe Subsidiaries resulting therefrom) being excessive in view of the benefits to be obtained by the Secured Parties therefrom; (G) any intent-to-use trademark applications filed in the United States Patent and Trademark Office; and (H) the Excluded Equity Interests (it being understood that, to the extent the Security Interest shall not have attached to any such asset as a result of clauses (A) through (H) above, the term “Article 9 Collateral” shall not include any such asset). In each case to the extent a security interest therein cannot be perfected by the filing of a financing statement under the Uniform Commercial Code or other applicable law.
(cb) 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 describe the collateral covered thereby in any manner that the Administrative 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 assets” of such Grantor, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detaileffect, 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 (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. Each Grantor also ratifies its authorization for the Collateral Administrative Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto with respect to the Article 9 Collateral or any part thereof naming any Grantor as debtor or the Grantors as debtors and the Administrative Agent as secured party, if filed prior to the 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 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 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 Administrative Agent as secured party.
(dc) The Security Interest is and the security interest granted pursuant to Article II are granted as security only 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 Article 9 Collateral.
Appears in 4 contracts
Sources: Credit Agreement (SMART Global Holdings, Inc.), Credit Agreement (SMART Global Holdings, Inc.), Collateral Agreement (SMART Global Holdings, Inc.)
Security Interest. To secure the Secured Obligations, Debtor hereby grants to Secured Party a continuing security interest in, a general lien upon, and a right of set-off against, the following described Property of Debtor:
(a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns all now existing and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the 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 now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any rightarising Accounts, title or interest Goods, General Intangibles, Payment Intangibles, Deposit Accounts, Securities Accounts, Chattel Paper (collectivelyincluding, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all without limitation, Electronic Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all , Documents, Instruments;
(viii) all Inventory;
(ix) all , Software, Investment Property;
(x) Letter-, letters of credit, Letter of Credit Rights;
(xi) , advices of credit, money, Commercial Tort Claims described in Schedule IV;
(xii) Claims, Equipment, Inventory, Fixtures and Supporting Obligations, together with all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of and Accessions to any and all Supporting Obligations of the foregoing and all Proceeds of any of the foregoing (including, without limitation, all insurance policies and proceeds thereof);
(b) to the extent, if any, not included in clause above, Debtor’s present and future contracts, agreements, arrangements or understandings (i) for the sale, supply, provision or disposition of any assets;
(c) to the extent, if any, not included in clause (a) above, all products severed or extracted from the ground and all Accounts, General Intangibles and products and Proceeds thereof or related thereto, regardless of whether any such products are in raw form or processed for sale and regardless of whether or not Debtor had an interest in such products before extraction or severance;
(d) to the extent, if any, not included above, each and every other item of real or personal property and fixtures, whether now existing or hereafter arising or acquired, including, without limitation, all licenses, contracts and agreements and all collateral security for the payment or performance of any contract or agreement, together with all products and guarantees given by Proceeds (including all insurance policies and proceeds) and any Person with respect Accessions to any of the foregoing;
(be) providedall present and future business records and information, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of computer tapes and other storage media containing the same and computer programs and software (including, without limitation, source code, object code and related manuals and documentation and all licenses to use such contract or agreement, (Bsoftware) more than 65% of the issued for accessing and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of manipulating such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof)information; and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.and
(cf) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and additional property of Debtor from time to time delivered to file in any relevant jurisdiction any initial financing statements (including fixture filings) or deposited with respect Secured Party as security for the Secured Obligations or otherwise pursuant to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as all assets terms of such Grantor, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 this 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 partyAgreement.
(d) The Security Interest is granted as security only 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.
Appears in 3 contracts
Sources: Security Agreement (Allied Corp.), Security Agreement (Allied Corp.), Security Agreement (Allied Corp.)
Security Interest. (a) 3.1 As security for the prompt and complete payment when due (whether on the payment dates or performance, as otherwise) of all the case may be, in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby Borrower grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, Agent a security interest (the “Security Interest”) in all of Borrower’s right, title, and interest in, all right, title or interest in or to any and under all of Borrower’s personal property and other assets including without limitation the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiiias set forth herein) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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, whether now owned or hereafter acquired or words of similar effect as being of an equal or lesser scope or with greater detail(collectively, 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 “Collateral”): (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles; (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) Documents, (j) Goods; 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 case possession or under the control of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or Agent; and, to the like to be extracted or timber to be cutextent not otherwise included, a sufficient description all Proceeds of each of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to foregoing and all accessions to, substitutions and replacements for, and rents, profits and products of each of the foregoing.
3.2 Notwithstanding the broad grant of the security interest set forth in Section 3.1, above, the Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for the Collateral Agent shall not include (a) any “intent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed use” trademarks at all times prior to the date hereof. The Collateral Agent is further authorized to file first use thereof, whether by the actual use thereof in commerce, the recording of a statement of 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 office or any similar office in any other countryprovision) such documents as may be necessary intent-to-use application shall constitute Collateral, (b) nonassignable licenses or advisable for 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 the signature of any Grantorlimitation, Sections 9406, 9407 and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party.
(d) The Security Interest is granted as security only 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 9408 of the Article 9 CollateralUCC) and (c) any Excluded Account.
Appears in 3 contracts
Sources: Loan and Security Agreement (G1 Therapeutics, Inc.), Loan and Security Agreement (G1 Therapeutics, Inc.), Loan and Security Agreement (G1 Therapeutics, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Secured Obligations, each Grantor Pledgor hereby assigns and pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, in all right, title or and interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all InstrumentsGeneral Intangibles;
(viii) Goods;
(ix) all Instruments other than to the extent constituting Pledged Debt, which are governed by Article II;
(x) all Intellectual Property;
(xi) all Inventory;
(ixxii) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property Property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this sectionto the extent constituting Pledged Collateral, which are governed by Article II);
(xiii) all books and records; andLetter of Credit Rights;
(xiv) all Proceeds Commercial Tort Claims described on Schedule II hereto (as may be supplemented from time to time pursuant to Section 4.04);
(xv) all books and records pertaining to the Article 9 Collateral; and
(xvi) to the extent not otherwise included, all proceeds, Supporting Obligations and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;; Notwithstanding anything to the contrary in this Agreement, any other Loan Document or any Other First Lien Agreement, 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 Loan Documents and any Other First Lien Agreement with respect to Collateral need not be satisfied with respect to, the Excluded Property. In addition, for the avoidance of doubt, the provisions of Section 9.24 (Application of Gaming Laws) of the Credit Agreement and Section 6.22 (Gaming Laws) of this Agreement shall apply to all the terms and provisions of this Agreement.
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(c) 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 filingsfilings with respect to the Mortgaged Properties) 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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (ai) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (bii) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 personal property” or words of similar effect. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 in such Pledgor’s Patents, Trademarks and Copyrights, 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. 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) for the purpose of perfecting the Security Interest in any Article 9 Collateral of such Pledgor constituting Patents, Trademarks or Copyrights or any other assets.
(dc) The Security Interest is granted as security only 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.9
Appears in 3 contracts
Sources: Collateral Agreement (PlayAGS, Inc.), Collateral Agreement (AP Gaming Holdco, Inc.), Collateral Agreement (AP Gaming Holdco, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Administrative Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Administrative Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest (such assignment, pledge and grant of security interest, the “Security Interest”) in, in all right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General IntangiblesIntangibles (including, without limitation, all Intellectual Property);
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rightsall Software;
(xi) Commercial Tort Claims described in Schedule IVall Letter-of-Credit Rights;
(xii) all other personal property Commercial Tort Claims (other than leasehold interests as described in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this sectionSchedule 12 to the Perfection Certificate);
(xiii) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xiv) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, that notwithstanding . Notwithstanding anything herein to the contrarycontrary in this Agreement, in no event shall the security Collateral (whether the Article 9 Collateral or the Pledged Collateral) include, and no Grantor shall be deemed to have granted a Security Interest in, any of such Grantor’s right, title or interest granted hereunder attach toin:
(1) any Intellectual Property if the grant of such Security Interest shall constitute or result in (i) the abandonment, nor invalidation or rendering unenforceable of any right, title or interest of any Grantor therein, (ii) the breach or termination pursuant to the terms of, or a default under, any Intellectual Property or (iii) the violation of any applicable law (without limiting the foregoing, no Grantor shall be deemed to have granted a Security Interest in any Trademark applications filed in the United States Patent and Trademark Office on the basis of a Grantor’s “intent-to-use” such trademark, unless and until acceptable evidence of use of such Trademark has been filed with the United States Patent and Trademark Office pursuant to Section 1(c) or Section 1(d) of the ▇▇▇▇▇▇ Act (15 ▇.▇.▇. §▇▇▇▇, et seq.), whereupon such Trademark application will be deemed automatically included in the Article 9 Collateral” , to the extent that granting the Security Interest in such Trademark application prior to such filing would adversely affect the enforceability or “Pledged Stock” include validity of such Trademark application);
(A2) any contract General Intangible or any lease, license, franchise, charter, authorization, contract, property right or agreement to which a any Grantor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest Security Interest (i) shall be prohibited by any valid and enforceable provision of any contract, agreement, instrument or indenture governing such General Intangible, lease, license contract, property right or agreement, (ii) would give any other party to such General Intangible, lease, license, contract, property right or agreement the right to terminate its obligations thereunder, (iii) is permitted only with the consent of another party to such lease, license contract, property right or agreement, if such consent has not been obtained after the Grantor’s use of commercially reasonable efforts to obtain such consent, (iv) shall constitute or result in (i) the abandonment, invalidation or unenforceability of any right right, title or interest of the any Grantor therein therein, (v) shall constitute or (ii) result in a breach or termination (or result in any party thereto having the right to terminate) pursuant to the terms of, or a default under, any such contract General Intangible, lease, license, contract, property right or agreement agreement, or (vi) shall constitute or result in a violation under any law, regulation, permit, order or decree of any Governmental Authority, unless and until all required material consents shall have been obtained in each case as to this clause (2), other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC Uniform Commercial Code (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including Bankruptcy Laws) or principles of equity), ; provided, however, that such security interest 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 General Intangible, lease, license, contract, property right or agreement that does not constitute or result or no longer constitutes or results in any of the conditions or consequences specified in this clause (i2);
(3) any Excluded Equity Interests;
(4) any Exempt Deposit Accounts;
(5) any Excluded Equipment;
(6) any assets of any Grantor to the extent the Administrative Agent reasonably determines that the cost of obtaining or perfecting a security interest in such assets is excessive in relation to the benefit expected to be afforded to the Lenders thereby; and
(ii7) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests assets of any Foreign Subsidiary or any Equity Interests Subsidiary. (The items described in any Person that is not a wholly-owned Subsidiary wherethe foregoing clauses (1) through (7), pursuant inclusive, being referred to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereofas “Excluded Assets”); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.;
(cb) 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 the Pledged Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as all assets of such Grantor, whether now owned or hereafter acquired Grantor or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 reasonable request. Each Grantor also ratifies its authorization for the Collateral Administrative Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 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 partyparty to the extent a security interest may be perfected by filing with the United States Patent and Trademark Office or United States Copyright Office (or any successor office or any similar office in any other country).
(dc) The Security Interest is granted as security only 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 Article 9 Collateral.9
Appears in 3 contracts
Sources: First Lien Guarantee and Collateral Agreement, Second Lien Guarantee and Collateral Agreement (Jda Software Group Inc), First Lien Guarantee and Collateral Agreement (Jda Software Group Inc)
Security Interest. (a) As security for the payment and performance of the Obligations owing to each Investor now existing or performancein the future, OneMedNet does hereby pledge, assign, transfer, deliver and grant to such Investor a continuing and unconditional first priority security interest in the Escrow Deposit (all of which property, along with the products and proceeds therefrom, are individually and collectively referred to as the “Collateral”) until such time as the Escrow Deposit is delivered in accordance with this Section 4. “Obligations” shall mean, whether now existing or hereafter arising, created or incurred: (i) the loans evidenced by the Notes issued to such Investor; (ii) all interest accrued thereon (including interest which would be payable as post-petition in connection with any bankruptcy or similar proceeding, whether or not permitted as a claim thereunder); (iii) any and all fees, charges or other amounts due to such Investor under the Notes or the PIPE SPA; (iv) any and all expenses incurred by such Investor under, or in connection with, the Notes or the PIPE SPA; (v) any and all other liabilities and obligations of OneMedNet to such Investor under the Notes or PIPE SPA; and (vi) the performance by OneMedNet of all covenants, agreements and obligations of every nature and kind on the part of any of OneMedNet to be performed under the Notes or the PIPE SPA. Each of OneMedNet and the Investors agree that the right of the Investors to direct delivery of the Escrow Agreement pursuant to this Section 4 shall constitute “control” for purposes of applicable uniform commercial code. Upon delivery of the Escrow Deposit by the Escrow Agent in accordance with Section 4(a), (b) or (c), as the case may be, in full of the Obligationsthis Escrow Agreement shall terminate, each Grantor hereby assigns and pledges subject to the Collateral Agent, its successors and assigns, for the benefit provisions of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the 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 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds8.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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.
Appears in 3 contracts
Sources: Subscription Escrow Agreement (OneMedNet Corp), Subscription Escrow Agreement (OneMedNet Corp), Subscription Escrow Agreement (OneMedNet Corp)
Security Interest. All of the Borrowers' Obligations constitute one (a1) As security for loan secured by the Agent's Liens on the Collateral now or from time to time hereafter granted by any Borrower to the Agent. To secure timely payment or performance, as the case may be, and performance in full of the Obligations, each Grantor Borrower hereby assigns sells, assigns, conveys, mortgages, pledges, hypothecates and pledges transfers and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured PartiesLenders, a security interest (the “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 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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, whether now owned or hereafter acquired or words of similar effect as being of an equal or lesser scope or with greater detail, by such Borrower and wheresoever located: (i) Accounts; (ii) contain General Intangibles; (iii) Fixtures; (iv) Inventory; (v) Equipment; (vi) Intellectual Property; (vii) Investment Property; (viii) all of such Borrower's deposit accounts (general or special) with any financial institution with which such Borrower maintains deposits; (ix) all of such Borrower's now owned or hereafter acquired monies, and any and all other property and interests in property of such Borrower now or hereafter coming into the information required by Article 9 actual possession, custody or control of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only and shall not subject the Collateral 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, deposit, custody, pledge, transmission, collection or otherwise); (x) Documents, Instruments and Chattel Paper of such Borrower; (xi) all insurance policies relating to any of the foregoing, including without limitation business interruption insurance; (xii) all of such Borrower's books and records relating to any of the foregoing; (xiii) all accessions and additions to, substitutions for, and replacements of any of the foregoing; and (xiv) all cash collections from, and all other Secured Party cash and non-cash proceeds of, any of the foregoing including, without limitation, proceeds of and unearned premiums with respect to insurance policies insuring any of the Collateral and claims against any Person for loss of, 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 Article 9 Collateral.
Appears in 3 contracts
Sources: Loan and Security Agreement (Lois/Usa Inc), Loan and Security Agreement (Lois/Usa Inc), Loan and Security Agreement (Lois/Usa Inc)
Security Interest. (a) As security for To secure the complete and timely payment or performance, as the case may be, in full and satisfaction of the all Obligations, each Grantor Assignor hereby assigns assigns, mortgages and pledges to the Collateral Agent, its successors Assignee and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, Assignee a security interest (the “Security Interest”) in, as and by way of a first mortgage and security interest having priority over all other security interests, with power of sale, to the extent permitted by law, all of such Assignor’s right, title or and interest in or and to any and all of the following assets and properties following, whether now owned or at any time existing and filed or hereafter acquired by such Grantor or arising and filed (collectively with items named in which such Grantor now has or at any time in the future may acquire any rightsection 2.2, title or interest (collectivelybelow, the “Article 9 Collateral”):
(a) patents and patent applications, including, without limitation, the inventions and improvements described and claimed therein, and those patents listed on Exhibit “A”, attached hereto and made a part hereof, and (i) all Accounts;
the reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof, (ii) all Chattel Paper;
income, royalties, damages and payments now and hereafter due and/or payable under and with respect thereto, including, without limitation, damages and payments for past or future infringements thereof, (iii) all Deposit Accounts;
the right to ▇▇▇ for past, present and future infringements thereof, and (iv) all Documents rights corresponding thereto throughout the world (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing patents and all collateral security and guarantees given by any Person applications, together with respect the items described in clauses (i)-(iv), are sometimes hereinafter individually and/or collectively referred to any of as the foregoing“Patents”);
(b) providedcopyrights, that notwithstanding anything herein to the contrarycopyright registrations, in no event shall the security interest granted hereunder attach tocopyright applications and all computer programs, nor the terms “Article 9 Collateral” operating systems, application systems, hardware or “Pledged Stock” include (A) 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 (i) the unenforceability software of any right of the Grantor therein nature whatsoever owned by Assignor, whether operational, under development or inactive, including all object codes, source codes, modules, technical manuals, user manuals, operating instructions and procedures, in-put and out-put formats, program listings, narrative descriptions, program flow charts, file layouts, report layouts, screen layouts and other documentation therefor (ii) including internal notes, memoranda, status evaluations, marketing information and write-ups), and all improvements, modifications, enhancements, new releases and revisions thereof, whether in a breach or termination pursuant to the terms ofmachine-readable form, or a default under, any such contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC programming language or any other applicable law language or principles symbols, and whether stored, encoded, recorded or written on disk, tape, film, memory device, paper or other media of equity), provided, however, 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 agreement that does not result in nature; together with all tangible media upon which any of the consequences specified in (i) foregoing are recorded or (ii) encoded, including, without limitation, any proceeds of such contract or agreementall chips, disks, tapes, film and paper; including, without limitation, the copyrights, copyrights registrations and copyrights applications listed on Exhibit “C” attached hereto and made a part hereof, and (i) all renewals thereof, (Bii) more than 65% all income, royalties, damages and payments now and hereafter due and/or payable with respect thereto, including, without limitation, damages and payments for past or future infringements thereof, and (c) the right to ▇▇▇ for past, present and future infringements thereof (all of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant foregoing items are sometimes referred to herein collectively as the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof“Copyrights”); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.and
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at all material license agreements with 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 Grantorother party, whether Assignor is a licensor or licensee under any such license agreement, including, without limitation, the licenses listed on Exhibit “D” attached hereto and made a part hereof, and the right to prepare for sale, sell and advertise for sale all inventory now owned or hereafter acquired owned by Assignor and now or words of similar effect as being of an equal or lesser scope or with greater detail, and hereafter covered by such licenses (ii) contain the information required by Article 9 all of the Uniform Commercial Code of each applicable jurisdiction for foregoing is hereinafter referred to collectively as the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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“Licenses”).
(d) The Security Interest is granted as security only 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.
Appears in 3 contracts
Sources: Patents, Trademarks, Copyrights and Licenses Security Agreement (Intest Corp), Patents, Trademarks, Copyrights and Licenses Security Agreement (Intest Corp), Security Agreement (Intest Corp)
Security Interest. (a) As security for the payment or performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full of the Obligations, each Grantor Pledgor hereby assigns and 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, in all right, title or and interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles, including Intellectual Property;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-all Letter of Credit Rights;
(xi) all Commercial Tort Claims described in Schedule IVClaims;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this sectionthe foregoing clauses);
(xiii) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xiv) to the extent not otherwise included, all Proceeds proceeds, Supporting Obligations and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
(b) provided, that notwithstanding . Notwithstanding anything herein to the contrarycontrary in this Agreement, in no event this Agreement shall the not constitute a grant of a security interest granted hereunder attach toin, nor and the terms definitions of “Security Interest” and “Article 9 Collateral” or “Pledged Stock” include shall not include, (Aa) any vehicle covered by a certificate of title or ownership, whether now owned or hereafter acquired, (b) any property excluded from the definition of Pledged Collateral by virtue of the proviso to Section 3.01 hereof, (c) 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, (d) any Pledgor’s right, title or interest in any license, contract or agreement to which a Grantor such Pledgor is a party or any of its rights right, title or interests interest thereunder if and for so long as to the extent, but only to the extent, that such a grant would, under the terms of such security interest shall constitute license, contract or agreement, result in (i) the unenforceability of any right of the Grantor therein or (ii) in a breach or termination pursuant to of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any such license, contract or agreement to which such Pledgor is a party (other than to the extent that any such term would be rendered ineffective pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law (including, without limitation, Title 11 of the United States Code) or principles of equity); provided that immediately upon the ineffectiveness, providedlapse or termination of any such provision, howeverthe Collateral shall include, that and such Pledgor shall be deemed to have granted a security interest shall attach immediately at in, all such time rights and interests as the condition causing if such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result provision had never been in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreementeffect, (Be) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets Equipment owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof Pledgor that are is subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as purchase money lien or a Capital Lease Obligation if the contract or other agreement in which such Lien is granted (or the documentation providing for such IndebtednessCapital Lease Obligation) validly prohibits or requires the consent of any person other than the Pledgors as a condition to the creation of any other Lien security interest on such assets and proceedsEquipment or (f) that portion of the US Claire’s Marks owned by CBI.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (ai) whether such Grantor ▇▇▇▇▇▇▇ is an organization, the type of organization and any organizational identification number issued to such Grantor Pledgor and (bii) 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 case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals granted under this Agreement, including describing such property as “all assets” 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“all property”. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for request (acting at the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to written direction of the date hereofRequired 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 or any similar office in any other countryoffice) 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. 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 (acting at the written direction of the Required Lenders), in its reasonable discretion.
(dc) The Security Interest is granted as security only 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.9
Appears in 3 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (Claires Stores Inc), Guarantee and Collateral Agreement (Claires Stores Inc)
Security Interest. (a) As 3.1 Subject to Section 3.2, as security for the payment or performance, as the case may be, in full when due of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of all the Secured PartiesObligations (other than unasserted contingent indemnification obligations), and hereby Borrower grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, Agent a security interest (the “Security Interest”) in, 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 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, title or interest (collectively, the “Article 9 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;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) Goods; and all other tangible and intangible personal property (other than leasehold interests 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 real property) the possession or under the control of Agent; and, to the extent not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) included, all Proceeds and products of any and all Supporting Obligations each of the foregoing and all collateral security accessions to, substitutions and guarantees given by any Person with respect to any replacements for, and rents, profits and products of each of the foregoing;.
(b) provided, that notwithstanding 3.2 Notwithstanding anything herein to the contrary, in no event shall that the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” Collateral will not include (Aa) any contract application for a Trademark that would otherwise be deemed invalidated, cancelled or agreement abandoned due to which the grant of a Grantor is a party or any of its rights or interests thereunder if Lien thereon unless and for so long until such time as the grant of such Lien will not affect the validity of such trademark, (b) any lease, license (including any License), contract, or agreement, if the grant of a security interest shall constitute in such lease, license, contract, or result in agreement under the terms thereof or under applicable law with respect thereto, is prohibited and such prohibition has not been or is not waived or the consent of the other party to such lease, license, contract, or agreement has not been or is not otherwise obtained or under applicable law such prohibition cannot be waived, (c) more than 65% of the voting equity interests of any Foreign Subsidiary, (d) vehicles and other goods subject to a certificate of title, (e) the Magnet Collateral, and (f) any deposit accounts (i) the unenforceability of any right of the Grantor therein used exclusively for payroll or employee benefit payment purposes and (ii) in a breach or termination pursuant to the terms of, or a default under, which are zero balance accounts; provided that (x) any such contract or agreement limitation described in the foregoing clause (other than b) on the security interests granted hereunder shall only apply to the extent that any such term would prohibition could not be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity)equity and (y) in the event of the termination or elimination of any such prohibition or the requirement for any consent contained in any applicable law, providedlease, howeverlicense, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied andcontract or other agreement, to the extent severablesufficient to permit any such item to become Collateral hereunder, shall attach immediately to any portion of such contract or agreement that does not result in any of upon the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests granting of any Foreign Subsidiary such consent, or waiving or terminating any Equity Interests in any Person that is not requirement for such consent, a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of in such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the lease, license, contract or other agreement in which such Lien is shall be automatically and simultaneously granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only hereunder and shall not subject the be included as 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 Collateralhereunder.
Appears in 3 contracts
Sources: Loan and Security Agreement (Viewray Inc), Loan and Security Agreement (Viewray Inc), Loan and Security Agreement (Viewray Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full To secure all of the Obligations, each Grantor hereby assigns Merchant's present and pledges future obligations to the Collateral AgentTransFirst, its successors Third-Party Sender, and assignsthe ODFI (TransFirst, its Third-Party Sender, and the ODFI are referred to as "Secured Party" for purposes of this Section 6.2) under this Agreement, Merchant hereby grants to Secured Party liens and security interests in all of Merchant's rights to and interests in the benefit following, presently existing or hereafter acquired, and in any interest earned thereon and proceeds thereof (collectively, "Collateral"): (i) the Reserve Account, (ii) the Settlement Account, (iii) any deposit account now or hereafter maintained by Merchant with the Secured Party, (iv) any of Merchant's funds now or hereafter in the possession of the Secured PartiesParty, and hereby grants to the Collateral Agent, its successors and assigns, for the 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 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(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 Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this sectionrelated notice and demand are hereby expressly waived);
(xiii) all books , to set off, recoup and records; and
(xiv) all Proceeds to appropriate and products of to apply any and all Supporting Obligations such amounts owing, funds held, account balances and other Collateral against and on account of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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 GrantorMerchant's obligations under this Agreement, whether now owned such obligations are liquidated, unliquidated, fixed, contingent matured or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in unmatured. In the case of any Collateral consisting of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. 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 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.
(d) The Security Interest is granted as security only and shall not subject the Collateral Agent or any other Secured Party or any other financial institution, ▇▇▇▇▇▇▇▇ hereby agrees that Secured Party 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 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 in any way alter or modify, any obligation or liability of any Grantor with respect to or arising out all of the Article 9 CollateralCollateral and take such other action as they may require in order to perfect 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 performanceperformance when due (whether at the stated maturity, by acceleration or otherwise), as the case may be, in full of the Obligations, each Grantor Pledgor hereby assigns and pledges to the Collateral Administrative Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby 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, in all right, title or and interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Money, whether held in a Deposit AccountsAccount or in the possession of the Administrative Agent;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-all Letter of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IVall Intellectual Property;
(xii) all other personal property (other than leasehold interests in real property) not otherwise Commercial Tort Claims described above (except for any property specifically excluded on Schedule V hereto, as updated from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section)time to time;
(xiii) all books and records; andcash held in any Securities Account;
(xiv) all Proceeds books and Records pertaining to the Article 9 Collateral; and
(xv) all Proceeds, Supporting Obligations and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
. 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 property covered by a certificate of title or ownership, whether now owned or hereafter acquired, (b) providedany Excluded Equity Interests, that notwithstanding anything herein (c) any Letter of Credit Rights, except to the contrary, in no event shall the extent a security interest granted hereunder attach totherein can be perfected by the filing of Uniform Commercial Code financing statements, nor and to the terms “Article 9 Collateral” or “Pledged Stock” include 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, (Ad) any Pledgor’s right, title or interest in any lease, license, contract or agreement to which a Grantor such Pledgor is a party or any of its rights right, title or interests interest thereunder if and for so long as to the extent, but only to the extent, that such a grant would, under the terms of such security interest shall constitute lease, license, contract or agreement, result in (i) the unenforceability of any right of the Grantor therein or (ii) in a breach or termination pursuant to 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 other party thereto (other than such Pledgor), such lease, license, contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law (including, without limitation, Title 11 of the United States Code) or principles of equity), provided, however, that such (e) assets to the extent the granting of a security interest shall attach immediately at therein would be prohibited or restricted by applicable law, rule or regulation (including any requirement to obtain the consent of any Governmental Authority), (f)(i) payroll and other 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 case of clauses (i) through (iv), the funds or other property held in or maintained in such time account, (g) any Commercial Tort Claim with a value not in excess of $5.0 million, as determined in good faith by the condition causing such unenforceability shall be remedied andBorrower, (h) any governmental licenses or State or local franchises, charters or authorizations, to the extent severablesecurity interests in such licenses, shall attach immediately franchises, charters or authorizations are prohibited or restricted thereby, after giving effect to any portion of such contract or agreement that does not result in any the applicable anti-assignment provisions of the consequences specified Uniform Commercial Code of any applicable jurisdiction notwithstanding such prohibition or restriction, (i) assets if the granting of a security interest therein would result in (i) 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) includingmaterial adverse regulatory consequences, without limitation, any proceeds of such contract or agreement, (B) more than 65% of in each case as reasonably determined by the issued Borrower and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without with the consent of the equity holders Administrative Agent (which consent will not to be unreasonably withheld, delayed or conditioned), (j) those assets as to which the Administrative 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 United States “intent to use” trademark application or intent-to-use service ▇▇▇▇ application filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ Act to the extent 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 Pledgor’s right, title or interest therein or any trademark or service ▇▇▇▇ issues as a result of such Person application under applicable federal law, after which period such application shall be automatically subject to the security interest granted herein and deemed to be included in the Collateral, (other than l) any assets and proceeds thereof subject to a Capital Lease Obligations or a purchase money Lien permitted by Section 6.02(i) of the Borrower Credit Agreement to the extent the documents providing for such Capital Lease Obligation or any wholly-owned Subsidiary thereof); purchase money Lien do not permit such assets and proceeds thereof to the pledged to the Administrative Agent and (Cm) any assets owned by any Grantor on acquired after the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to by Section 4.09(b)(46.02(c) of the Indenture to Credit Agreement that existed on such assets at the extent time of the acquisition thereof and for was not incurred in contemplation of such acquisition so long as the contract or other agreement in which such Lien is granted (or the documentation documents providing for such IndebtednessLien do not permit such assets to be pledged to the Administrative Agent (the assets described in clauses (a) validly prohibits through (l) above, collectively, the creation “Excluded Assets”); provided that such exclusions shall not apply to the proceeds of any other Lien on such assets and proceedsof the foregoing 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 initial 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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (ai) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (bii) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. Each Grantor also ratifies its authorization As of the Closing Date, the filing jurisdictions for the Collateral Agent to file in any relevant jurisdiction any initial filing of each applicable Uniform Commercial Code financing statements or amendments thereto if filed prior to the date hereofstatement is as set forth on Schedule IV. 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 or any similar office in any other countryoffice) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any GrantorPledgor, and naming any Grantor Pledgor or the Grantors Pledgors as debtors and the Collateral Administrative Agent as secured party. 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.
(dc) The Security Interest is granted as security only and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Article 9 Collateral.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 prompt, complete and indefeasible payment when due (whether on the payment dates or performance, as otherwise) and performance of all the case may be, in full of the Secured Obligations, each Grantor hereby assigns and pledges Company grants to the Collateral Agent, its successors and assigns, for the benefit of Agent and the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured PartiesPurchasers, a security interest (the “Security Interest”) in, 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, 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, title or interest arising and wherever located (collectively, the “Article 9 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; (iij) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
4.15 (xiitogether with Commercial Tort Claims subject to a further writing provided in accordance with Section 6.3); (k) all Contracts; (l) all Intellectual Property; and all other tangible and intangible personal property (other than leasehold interests in real property) of such Company whether now or hereafter owned or existing or acquired by such Company, and wherever located; and, to the extent not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) included, all Proceeds and products of any and all Supporting Obligations each of the foregoing and all collateral security accessions to, substitutions and guarantees given by any Person with respect replacements for, and rents, profits and products of each of the foregoing and all books and records pertaining to each the foregoing. Notwithstanding any of the foregoing;
(b) provided, that notwithstanding anything herein to the contraryCollateral shall not under any circumstance include, in and no event shall the security interest is granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (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 unenforceability terms of any right 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 Grantor therein or (ii) in a breach or termination pursuant other party to the terms ofsuch contract, lease, permit, license, or a default underlicense agreement has not been obtained (provided, any such contract or agreement that, (other than A) the foregoing exclusions of this clause (i) shall in no way be construed (1) to apply to the extent that any such term would be rendered ineffective pursuant to Sections described prohibition or restriction is unenforceable under Section 9-406, 9-407, 9-408 408, or 9-409 of the New York UCC or any other applicable law law, or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, (2) to apply to the extent severable, shall attach immediately to that any portion of such contract consent or agreement waiver has been obtained that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such would permit Agent’s security interest or lien is prohibited notwithstanding the prohibition or prohibited without restriction on the consent 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 limit, impair, or otherwise affect any of Agent’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 sale, license, lease, or other dispositions of any such contract, lease, permit, license, or license agreement); (ii) any assets subject to Liens under the Mississippi Loan Documents as of the equity holders date of such Person the First Closing, (other than iii) any cash or cash equivalents described in clause (vii) of the Borrower or any wholly-owned Subsidiary thereof); definition of Permitted Indebtedness, and (Civ) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4under clause (vii) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation definition of any other Lien on such assets and proceeds“Permitted Liens”.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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.
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 of the Secured Obligations, each Grantor hereby assigns and pledges grants to the Collateral Administrative Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, 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 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 (collectively, the “Article 9 Filing Collateral”):
(i) the following (collectively, the “Account Collateral”):
(1) all Accountsdeposit accounts, securities accounts, proceeds accounts and all funds and financial assets from time to time credited thereto (including, without limitation, all cash equivalents), and all certificates and instruments, if any, from time to time representing or evidencing any such accounts;
(2) all promissory notes, certificates of deposit, checks and other instruments from time to time delivered to or otherwise possessed by the Administrative Agent for or on behalf of such Grantor in substitution for or in addition to any or all of the then existing Account Collateral; and
(3) all interest, dividends, distributions, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the then existing Account Collateral;
(ii) all Chattel Paperequipment in all of its forms, including, without limitation, all machinery, tools, furniture and fixtures, and all parts thereof and all accessions thereto, including, without limitation, computer programs and supporting information that constitute equipment within the meaning of the UCC;
(iii) all Deposit Accountsinventory in all of its forms, including, without limitation, (1) all raw materials, work in process, finished goods and materials used or consumed in the manufacture, production, preparation or shipping thereof, (2) goods in which such Grantor has an interest in mass or a joint or other interest or right of any kind (including, without limitation, goods in which such Grantor has an interest or right as consignee) and (3) goods that are returned to or repossessed or stopped in transit by such Grantor, and all accessions thereto and products thereof and documents therefor, including, without limitation, computer programs and supporting information that constitute inventory within the meaning of the UCC;
(iv) all Documents (other than title documents relating to vehicles)goods;
(v) all EquipmentIntellectual Property (the “IP Collateral”);
(vi) all General Intangiblesinvestment property (including, without limitation, all (A) securities, whether certificated or uncertificated, (B) security entitlements, (C) securities accounts, (D) commodity contracts and (E) commodity accounts) in which such Grantor has now, or acquires from time to time hereafter, any right, title or interest in any manner, and the certificates or instruments, if any, representing or evidencing such investment property, and all dividends, distributions, return of capital, interest, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such investment property and all warrants, rights or options issued thereon or with respect thereto;
(vii) all Instrumentsletter-of-credit rights;
(viii) all Inventorycommercial tort claims;
(ix) all Investment Propertyaccounts (including, without limitation, health-care-insurance receivables), chattel paper (including, without limitation, tangible chattel paper and electronic chattel paper), instruments (including, without limitation, promissory notes), deposit accounts, letter-of-credit rights, general intangibles (including, without limitation, payment intangibles) and other obligations of any kind, whether or not arising out of or in connection with the sale or lease of goods or the rendering of services and whether or not earned by performance, and all rights now or hereafter existing in and to all supporting obligations and in and to all security agreements, mortgages, Liens, leases, letters of credit and other contracts securing or otherwise relating to the foregoing property;
(x) Letter-each of Credit Rightsthe agreements to which such Grantor is now or may hereafter become a party, in each case as such agreements may be amended, amended and restated, supplemented or otherwise modified from time to time, including, without limitation, (i) all rights of such Grantor to receive moneys due and to become due thereunder or pursuant thereto, (ii) all rights of such Grantor to receive proceeds of any insurance, indemnity, warranty or guaranty with respect thereto, (iii) claims of such Grantor for damages arising out of or for breach of or default thereunder and (iv) the right of such Grantor to terminate such agreements, to perform thereunder and to compel performance and otherwise exercise all remedies thereunder;
(xi) Commercial Tort Claims described in Schedule IVall books and records (including, without limitation, customer lists, credit files, printouts and other computer output materials and records) of such Grantor pertaining to any of the Collateral;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);general intangibles; and
(xiii) all books proceeds of, collateral for, income, royalties and records; and
(xiv) all Proceeds other payments now or hereafter due and products of payable with respect to, and supporting obligations relating to, any and all of the Collateral (including, without limitation, proceeds, collateral and Supporting Obligations that constitute property of the foregoing and types described in clauses (i) through (xii) of this Section 3.01(a)) and, to the extent not otherwise included, all collateral security and guarantees given (A) payments under insurance (whether or not the Administrative Agent is the loss payee thereof), or any indemnity, warranty or guaranty, payable by any Person reason of loss or damage to or otherwise with respect to any of the foregoing;
(b) providedforegoing Collateral, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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.cash;
Appears in 3 contracts
Sources: Credit Agreement (Amplify Snack Brands, INC), Credit Agreement (TA Holdings 1, Inc.), Collateral Agreement (TA Holdings 1, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, all right, title or interest in or in, to and under any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit AccountsDocuments;
(iv) all Documents (other than title documents relating to vehicles)Equipment;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Instruments;
(viiivii) all Inventory;
(ixviii) all Investment Property;
(ix) all books and records pertaining to the Article 9 Collateral;
(x) Letter-of Credit Rightsall Goods and Fixtures;
(xi) Commercial Tort Claims described in Schedule IVall Money, cash, cash equivalents and Deposit Accounts;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section)Letter-of-Credit Rights;
(xiii) all books 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 recordsall cash, Money, Securities and other investments deposited therein;
(xv) all Supporting Obligations;
(xvi) all Security Entitlements in any or all of the foregoing;
(xvii) all Intellectual Property; and
(xivxviii) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing (including proceeds of all insurance policies) and all collateral security and guarantees given by any Person with respect to any of the foregoing;.
(b) provided, that notwithstanding Notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as any asset is Excluded Property, the contract or other agreement in which Security Interest granted under this Section 3.01 shall not attach to, and Article 9 Collateral shall not include, such Lien is granted asset; provided, however, that the Security Interest shall immediately attach to, and Article 9 Collateral shall immediately include, any such asset (or the documentation providing for portion thereof) upon such Indebtednessasset (or such portion) validly prohibits the creation of any other Lien on such assets and proceedsceasing to be Excluded 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 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 Collateral as all assets or all personal property of such Grantor, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC of each applicable jurisdiction for the filing of any financing statement or amendment, including (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. Each Grantor also ratifies its authorization for the Collateral Agent (or its designee) to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is and the security interest granted pursuant to Article II are granted as security only 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.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 when due (whether on the payment dates or performance, as otherwise) of all the case may be, in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and Borrower hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, Agent a security interest (the “Security Interest”) in all of Borrower’s right, title, and interest in, all right, title or interest in or to any and under all of the following assets and properties Borrower’s personal property now owned or at any time hereafter acquired, and other assets including without limitation the following (except as set forth herein) whether now owned 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 (collectively, the “Article 9 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) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (Goods and other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) 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 (other than leasehold interests in real propertyj) to the extent not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) included, all Proceeds and products of any and all Supporting Obligations each of the foregoing and all collateral security accessions to, substitutions and guarantees given by any Person with respect to any replacements for, and rents, profits and products of each of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), ; provided, however, that such security interest the Collateral 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 agreement that does not result in any of the consequences specified in (i) 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”) and (ii) including, without limitation, any proceeds of such contract or agreement, not include (BA) more than 65% of the issued and outstanding voting Equity Interests capital stock of any Foreign Subsidiary that is incorporated or organized in a jurisdiction other than the United States or any Equity Interests in state or territory thereof or the District of Columbia; (B) Intellectual Property (other than Rights to Payment); (C) any Person Equipment or Proceeds thereof that is not subject to a whollyLien that is otherwise permitted by clause (vii) of the definition of “Permitted Lien” hereunder if inclusion of such Equipment would constitute a breach by Borrower of its agreement with a third-owned Subsidiary whereparty equipment lessor or lender, pursuant provided, that upon the release of any such Lien such Equipment shall be deemed to be Collateral hereunder and shall be subject to the organizational documents or any related shareholders or similar agreement security interest granted herein; and (D) 100% of such Personthe issued and outstanding capital stock of the MSC Subsidiary. Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the grant underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, and the existence of such security interest would not otherwise violate or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or breach any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file provision in any relevant jurisdiction any initial financing statements (including fixture filings) applicable agreement or contract that is enforceable under the UCC with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate applicable Intellectual Property, then the Collateral as all assets of such Grantor, whether now owned or hereafter acquired or words of similar effect as being of an equal or lesser scope or with greater detailshall automatically, and (ii) contain the information required by Article 9 effective as of the Uniform Commercial Code Closing Date, include the Intellectual Property to the extent necessary to permit perfection of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) Agent’s security interest in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like Rights to be extracted or timber to be cut, a sufficient description of the real property to which such Article 9 Collateral relatesPayment. Each Grantor Lender hereby agrees to provide such information Borrower, at Borrower’s expense, with any release, partial termination or other documents reasonably requested by Borrower to reflect or confirm that the Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for does not include any property excluded from the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 partydefinition thereof.
(d) The Security Interest is granted as security only 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.
Appears in 2 contracts
Sources: Loan and Security Agreement (Aveo Pharmaceuticals, Inc.), Loan and Security Agreement (Aveo Pharmaceuticals Inc)
Security Interest. (a) 3.1 As security for the prompt and complete payment when due (whether on the payment dates or performance, as otherwise) of all the case may be, in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby Borrower grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, Agent a security interest (the “Security Interest”) in, 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 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, title or interest (collectively, the “Article 9 Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles; (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) Goods; and all other tangible and intangible personal property (other than leasehold interests 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 real property) the possession or under the control of Agent; and, to the extent not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) included, all Proceeds and products of any and all Supporting Obligations each of the foregoing and all collateral security accessions to, substitutions and guarantees given by any Person with respect to any replacements for, and rents, profits and products of each of the foregoing;.
(b) provided, that notwithstanding anything herein to 3.2 Notwithstanding the contrary, in no event shall broad grant of the security interest granted hereunder attach toset forth in Section 3.1, above, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result anything else in any of the consequences specified in Loan Documents, the Collateral shall not include (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (Ba) more than 65% of the presently existing and hereafter arising issued and outstanding voting Equity Interests shares of capital stock of any Foreign Subsidiary (or of any holding company, substantially all the assets of which consist directly or indirectly of securities of one or more Foreign Subsidiaries) which shares entitle the holder thereof to vote for directors or any Equity Interests in other matter, (b) any Person that is not a wholly-owned Subsidiary where, pursuant “intent to use” trademarks at all times prior to the organizational documents first use thereof, whether by the actual use thereof in commerce, the recording of a statement of use with the United States Patent and Trademark Office or otherwise, (c) any permits, state or local franchises, charters, authorizations or licenses issued to any Borrower as the holder or licensee thereof, or any related shareholders Operating Lease to which any Borrower is lessee thereof (and solely any equipment leased under such leases or similar agreement of another Operating Lease with the same lessor, if such PersonOperating Lease so provides), the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); other contracts or other agreements to which any Borrower is a party (including, without limitation, any Operating Lease with any of Manufacturer and (CTraders Trust Company, BB&T EFC Energy, LLC, ▇▇▇▇▇ Fargo Equipment Finance, Inc., Generate Capital, Inc. and PNC Energy Capital LLC or their respective Affiliates) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are equipment or other property subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4thereto, now existing or entered into in the future, in each case only (x) of the Indenture to the extent and for so long as the terms of such permit, franchise, charter, authorization, license, lease, contract or other agreement in which such Lien is granted effectively (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time after giving effect to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article Sections 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as all assets of such Grantor406 through 9 409, whether now owned or hereafter acquired or words of similar effect as being of an equal or lesser scope or with greater detailinclusive, 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 (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) UCC in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office applicable state (or any successor office provision or provisions) or any similar office other applicable laws) prohibits the creation by such Borrower of a security interest in such permit, license, lease, contract or other agreement or any equipment or other property subject thereto in favor of the Agent or would result in an effective invalidation, termination 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 countryapplicable laws), in each case unless and until any required consents are obtained and (y) such documents 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 or advisable 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 or previous release of Lien provided by the Grantors as debtors and Agent requested in connection with respect to any such obligations, the Collateral Agent as secured party.
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 without further action or notice by any Person, (d) The Security Interest [reserved], (e) any equipment securing purchase money indebtedness or Indebtedness relating to capital leases if the granting of a Lien to any third party is granted as security prohibited by the agreement(s) setting forth the terms and conditions applicable to such Indebtedness, but only if such Indebtedness and shall not subject the Collateral Agent or any other Secured Party toLiens securing the same are permitted by this Agreement, or provided that if and when the prohibition which prevents the granting of a Lien in any way alter such equipment is removed, terminated or modifyotherwise becomes unenforceable as a matter of law (including, any obligation or liability without limitation, the termination of any Grantor such security interest resulting from the satisfaction of the Indebtedness secured thereby), and notwithstanding any previous release of Lien provided by the Agent 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 arising out 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 Agent and Lenders pursuant to the applicable Operating Lease.
3.3 Agent 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 Agent shall promptly terminate the security interest and, at Borrower’s expense, take all actions reasonably requested by Borrower to evidence such termination, including the prompt return of the Article 9 Collateralany possessory collateral held by Agent.
Appears in 2 contracts
Sources: Loan and Security Agreement, Loan and Security Agreement (Plug Power 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 of the Secured Obligations, each Grantor Pledgor hereby assigns and pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, in all right, title or and interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all InstrumentsInstruments other than debt obligations, which are governed by Article II;
(viii) all InventoryInventory and all other Goods not otherwise described above;
(ix) all Investment PropertyProperty other than the Pledged Collateral and debt obligations, which are governed by Article II;
(x) Letter-all Letter of Credit Rights;
(xi) all Commercial Tort Claims individually in excess of $10,000,000, as described in on Schedule IVIV (as may be supplemented from time to time pursuant to Section 3.04);
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above books and any property specifically excluded from any defined term used in any clause of this section);records pertaining to the Article 9 Collateral; and
(xiii) to the extent not otherwise included, all books and records; and
(xiv) all Proceeds proceeds, Supporting Obligations and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;. Notwithstanding anything to the contrary in this Agreement, the other Credit Agreement Documents, the other Notes Indenture Documents or any Other First Lien Agreement, 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 Agreement Documents, the Notes Indenture Documents and any Other First Lien Agreement with respect to Collateral need not be satisfied with respect to, the Excluded Property.
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(c) 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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (ai) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (bii) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 Collateral granted under this Agreement, including describing such property as “all assets” or “all personal property”. Each Grantor Pledgor agrees to provide such information to the Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 in such Pledgor’s Patents, Trademarks and Material Copyrights, 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. 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 of such Pledgor constituting Patents, Trademarks or Copyrights or any other assets.
(dc) The Security Interest is granted as security only 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.9
Appears in 2 contracts
Sources: Collateral Agreement (McGraw-Hill Interamericana, Inc.), Collateral Agreement (McGraw-Hill Global Education LLC)
Security Interest. (a) As This Agreement and the other Credit Documents, upon execution and delivery thereof by the parties thereto and entry of the DIP Orders (and subject to the terms therein), will create in favor of the Lenders a legal, valid and enforceable security for interest in the payment or performanceCollateral described therein and the proceeds thereof, which security interest shall be deemed valid and perfected as of the case may beEffective Date by entry of the DIP Orders with respect to each Credit Party and which shall constitute continuing Liens on the Collateral having priority over all other Liens on the Collateral, in full of securing all the Obligations, each Grantor hereby assigns other than the Carve-Out and pledges as otherwise set forth in the DIP Orders. The Lenders shall not be required to file or record (but shall have the Collateral Agentoption and authority to file or record) any financing statements, its successors and assignsmortgages, for notices of Lien or similar instruments, in any jurisdiction or filing office or to take any other action in order to validate, perfect or establish the benefit priority of the Secured Parties, Liens and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (granted by or pursuant to this Agreement, any other Credit Document or the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;DIP Orders.
(b) providedPursuant to Section 364(c)(1) of the Bankruptcy Code, that notwithstanding anything herein the Obligations of the Credit Parties shall at all times constitute allowed senior administrative expenses against each of the Credit Parties in the Chapter 11 Cases (without the need to file any proof of claim or request for payment of administrative expense), with priority over any and all other administrative expenses, adequate protection claims, diminution claims and all other claims against the contraryCredit Parties, in no event shall the security interest granted hereunder attach tonow existing or hereafter arising, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein kind or (ii) in a breach or termination pursuant to the terms ofnature whatsoever, or a default under, any such contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% all administrative expenses of the issued kind specified in sections 503(b) and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4507(b) of the Indenture Bankruptcy Code, and over any and all other administrative expense claims arising under Sections 105, 326, 328, 330, 331, 503(b), 506(c) (with any claims arising under Section 506(c) only subject to the extent entry of the DIP Orders), 507(a), 507(b), 546, 726, 1113 and for so long as 1114 of the contract Bankruptcy Code, whether or not such expenses or claims may become secured by a judgment Lien or other agreement in nonconsensual Lien, levy or attachment, which such Lien is granted (or allowed claims shall for purposes of section 1129(a)(9)(A) of the documentation providing for such IndebtednessBankruptcy Code be considered administrative expenses allowed under section 503(b) validly prohibits of the creation Bankruptcy Code, and which shall be payable from and have recourse to all pre- and post-petition property of any other Lien on such assets the Credit Parties and proceeds.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time their estates and from time all proceeds thereof, subject, as to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect priority, only to the Article 9 Collateral or any part thereof Carve-Out and amendments thereto that (i) indicate the Collateral as all assets of such Grantor, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) otherwise set forth in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 partyDIP Orders.
(d) The Security Interest is granted as security only 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.
Appears in 2 contracts
Sources: Senior Secured Super Priority Debtor in Possession Credit Agreement (Carbo Ceramics Inc), Restructuring Support Agreement (Carbo Ceramics Inc)
Security Interest. (a) As security for the payment or performance, SUBJECT PROPERTY" (sometimes referred to herein as the case may be, in full "COLLATERAL") means all of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, all Providers' right, title or and interest in or in, to and under any and all of the following assets following: all Accounts and properties Purchased Accounts arising on or after October 18, 2002, and all Accounts and Purchased Accounts representing any and all of Providers' rights to payment, whenever arising, together with all accounts, chattel paper, documents, instruments, letter of credit rights, supporting obligations, deposit accounts, and general intangibles arising from or related thereto, all rights, remedies, guarantees, security interests and liens in respect of any of the foregoing, all records (other than patient medical records to the extent protected from disclosure by law) and other information necessary or relevant to the collection of such Accounts and Purchased Accounts, whether now owned or at any time existing or hereafter created, acquired by or arising and wherever located and all of the proceeds, products, and offspring of the foregoing (all of such Grantor terms, as applicable, are presently or in which such Grantor now has or at any time hereafter defined in the future may acquire any rightUniform Commercial Code), title or interest (collectively, the “Article 9 Collateral”):
including but not limited to (i) all Accounts;
rights to payment arising on or after October 18, 2002 under any agreements with all Third Party Obligors, (ii) all Chattel Paper;
cash deposited with Purchaser or that Purchaser is entitled to retain or otherwise possess as collateral pursuant to the provisions of this Factoring Agreement, and (iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations cash and non-cash proceeds of the foregoing (including, but not limited to, any claims to any items referred to in this definition and any claims against third parties for loss of, damage to, or destruction of any or all collateral security and guarantees given by any Person of the Subject Property or for proceeds payable under or unearned premiums with respect to any policies of the foregoing;insurance) in whatever form.
(b) providedIn the event that, that notwithstanding anything herein contrary to the contrarymutual intent of the Provider and the Purchaser, any purchase of any Purchased Accounts is not characterized as a sale, each Provider shall, effective as of the date hereof, be deemed to have granted (and the Provider does hereby grant) to the Purchaser a first priority security interest in and to all of the Subject Property to secure the repayment of all amounts advanced to or for the benefit of each Provider and all of the Providers hereunder and all other amounts due or owing to the Purchaser by any and all of the Providers, and this Agreement shall be deemed to be a security agreement for such purposes. In such event, it is agreed that this Agreement is intended to comply in all respects with all provisions of law and not to violate, in no event shall any way, any legal limitations on interest charges. Accordingly, if, for any reason, the security Providers are required to pay, or have paid, interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) any contract or agreement to which fees at 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 rate in (i) the unenforceability of any right excess of the Grantor therein highest rate of interest which may be charged by the Purchaser or (ii) in a breach or termination pursuant which the Providers may legally contract to the terms of, or a default under, any such contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other pay under applicable law or principles of equity(the "MAXIMUM RATE"), provided, however, that such security then the interest shall attach immediately at such time as the condition causing such unenforceability rate shall be remedied anddeemed to be reduced, automatically and immediately, to the extent severableMaximum Rate, and interest or fees payable hereunder shall attach immediately to any be computed and paid at the Maximum Rate and the portion of such contract all prior payments of interest or agreement that does not result fees in any excess of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% Maximum Rate shall be deemed to have been prepayments of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant amounts advanced to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedsProviders hereunder.
(c) Each Grantor hereby irrevocably authorizes With respect to the Collateral Agent grant of a security interest as set forth above, the Purchaser may, at any time and its option, exercise from time to time any and all rights and remedies available to file in any relevant jurisdiction any initial financing statements it under the UCC or otherwise. Each Provider agrees that five (including fixture filings5) 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, whether now owned or hereafter acquired or words of similar effect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 days shall be reasonable prior notice of the Uniform Commercial Code of each applicable jurisdiction for the filing date of any financing statement public or amendment, including (a) whether such Grantor is an organization, the type private sale or other disposition of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing all or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cut, a sufficient description part of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information to the Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 partySubject Property.
(d) The Security Interest Each Provider represents and warrants that: (i) the location of the Provider's principal place of business, chief executive office and all locations in which the Provider maintains records with respect to the Accounts are set forth in the introductory paragraph of this Agreement, and that the Provider has not changed any such location in the last five (5) years; and (ii) the exact name of the Provider is granted as security only set forth in the introductory paragraph of this Agreement and, except as set forth therein, the Provider has not changed its name in the last five (5) years and shall during such period the Provider did not subject use, nor does the Collateral Agent Provider now use, any fictitious, doing business as or trade name or any other Secured Party to, or name. Each Provider shall notify the Purchaser in writing thirty (30) days prior to any change in any way alter or modify, location referred to in clause (i) and/or any obligation or liability of change in any Grantor with respect name referred to or arising out of the Article 9 Collateralin clause (ii).
Appears in 2 contracts
Sources: Master Purchase and Sale Agreement (Med Diversified Inc), Master Purchase and Sale Agreement (Med Diversified Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, in all right, title or and interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accountscash;
(iv) all Documents (other than title documents relating to vehicles)Deposit Accounts, all Commodity Accounts and all Securities Accounts;
(v) all Documents;
(vi) all Equipment;
(vivii) all Fixtures;
(viii) all General Intangibles;
(viiix) Goods;
(x) all Instruments;
(viiixi) all Intellectual Property;
(xii) all Inventory;
(ixxiii) all Investment PropertyProperty other than the Pledged Collateral;
(xxiv) Letter-all Letters of Credit and Letter of Credit Rights;
(xixv) Commercial Tort Claims described in Schedule IVall minerals, oil, gas and As-Extracted Collateral;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiiixvi) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xivxvii) substitutions, replacements, accessions, products and proceeds (including insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds of suit) and to the extent not otherwise included, all Proceeds proceeds, Supporting Obligations and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
. Notwithstanding anything to the contrary in the 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) providedany 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 Closing Date or acquired after the Closing Date with Indebtedness of the type permitted pursuant to Section 10.1(h) of the Credit Agreement) including, that notwithstanding anything herein for the avoidance of doubt any assets subject to a Lien, on the Closing Date, pursuant to the contraryWhitney Term Loan Documents (as defined in the Credit Agreement), 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 than proceeds thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibitions) or to the extent that such 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 consultation with the Collateral Agent, (c) those assets with respect to which, in no event shall the reasonable judgment of the Agent and the Borrower, evidenced in writing delivered by the Agent, the costs or other consequences of obtaining or perfecting such a security interest granted hereunder attach toare excessive in view of the benefits to be obtained by the Secured Parties therefrom, nor the terms “Article 9 Collateral” or “Pledged Stock” include (Ad) any Letter of Credit Rights (other than to the extent a Lien thereon can be perfected by filing a customary financing statement), (e) any Excluded Securities, (f) any Grantor’s right, title or interest in any license, contract or agreement to which a such Grantor is a party or any of its rights right, title or interests interest thereunder if and for so long as to the extent, but only to the extent, that such a grant would violate the terms of applicable law or of such security interest shall constitute license, contract or agreement, or result in (i) the unenforceability of any right of the Grantor therein or (ii) in a breach or termination pursuant to of the terms of, or constitute a default under, any such license, contract or agreement to which such Grantor is a party (other than to the extent that any such term would be rendered ineffective pursuant to Sections 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, providedimmediately upon the ineffectiveness, howeverlapse or termination of any such provision, that the Collateral shall include, and such Grantor shall be deemed to have granted a security interest shall attach immediately at in, all such time rights and interests as the condition causing if such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result provision had never been in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreementeffect, (Bg) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary equipment or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets asset owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are is subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of purchase money lien or a Capitalized Lease Obligation, in each case, as not prohibited by the Indenture to the extent and for so long as Credit Agreement, if the contract or other agreement in which such Lien is granted (or the documentation providing for such IndebtednessCapitalized Lease Obligation) validly prohibits or requires the consent of any person other than the Grantors as a condition to the creation of any other Lien security interest on such assets equipment or asset and, in each case, such prohibition or requirement is not prohibited by the Credit Agreement, (h) any foreign collateral or credit support with respect to such foreign collateral (other than any Pledged Stock of a Foreign Subsidiary directly owned by a Grantor and proceedspledged pursuant to Article III hereof), (i) any real property (owned or leased) or oil and gas properties (owned or leased) other than the Mortgaged Properties or (j) the Excluded Accounts (the foregoing clauses (a) through (j), the “Excluded Assets”).
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (ai) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor, (bii) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 agrees to provide such information to the Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(dc) The Security Interest is granted as security only 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.
Appears in 2 contracts
Sources: Credit Agreement (Talos Energy Inc.), Credit Agreement (Talos Energy Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Administrative Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Administrative Agent, its successors and assigns, for the 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 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rightsall Software;
(xi) Commercial Tort Claims described in Schedule IVall Letter-of-Credit rights;
(xii) all other personal property Commercial Tort Claims (other than leasehold interests as described in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this sectionSchedule 12 to the Perfection Certificate);
(xiii) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xiv) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, that notwithstanding . Notwithstanding anything herein to the contrarycontrary in this Agreement, in no event this Agreement shall the not constitute a grant of a security interest granted hereunder attach to, nor the terms “Article 9 Collateral” in any General Intangible or “Pledged Stock” include (A) any contract or agreement to which a Grantor is a party or any of its rights or interests thereunder hereunder if and for so long as the grant of such security interest shall constitute or result in (ix) the abandonment, invalidation or unenforceability of any right right, title or interest of the Grantor therein therein, (y) a violation of a valid and enforceable restriction in respect of such General Intangible, Investment Property or other such rights in favor of a third party or under any law, regulation, permit, order or decree of any Governmental Authority, unless and until all required material consents shall have been obtained or (iiz) in a breach or termination (or result in any party thereto having the right to terminate) pursuant to the terms of, or a default under, any such contract contract, lease, instrument, permit, franchise, license or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), ; provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability or breach or termination, as the case may be, shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract contract, lease, instrument, permit, franchise or agreement that does not result in any of the consequences specified in the immediately preceding clause (ix), (y) or (iiz) including, without limitation, any proceeds of such contract contract, lease, instrument, permit, franchise or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(cb) 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 the Pledged Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as all assets of such Grantor, whether now owned or hereafter acquired Grantor or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 relatesGrantor. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon reasonable request. Each Grantor also ratifies its authorization for the Collateral Administrative Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 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 partyparty to the extent a security interest may be perfected by filing with the United States Patent and Trademark Office or United States Copyright Office (or any successor office or any similar office in any other country).
(dc) The Security Interest is granted as security only 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 Article 9 Collateral or Pledged Collateral.
Appears in 2 contracts
Sources: Second Lien Guarantee and Collateral Agreement (RedPrairie Holding, Inc.), Guarantee and Collateral Agreement (RedPrairie Holding, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Administrative Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Administrative Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in, all of its right, title or and interest in or in, to and under any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all AccountsAccounts (other than Accounts that are identifiable proceeds of the sale or other disposition of Term Loan Exclusive Collateral);
(ii) all Chattel PaperDeposit Accounts and all cash credited thereto, including, without limitation, the Concentration Account and the Control Accounts and all cash credited thereto (other than any Deposit Account that contains solely the identifiable cash proceeds of property that was Term Loan Exclusive Collateral when such cash proceeds arose);
(iii) all Deposit AccountsInventory;
(iv) all Documents (other than title documents relating to vehicles)Payment Intangibles;
(v) all Equipment;books and records pertaining to any and/or all of the Collateral; and
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) to the extent not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees supporting obligations given by any Person with respect to any of the foregoing;.
(b) provided, that notwithstanding anything Anything herein to the contrarycontrary notwithstanding, in no event shall the security interest granted hereunder under this Section 3.01 attach to, nor to and the terms term “Article 9 Collateral” or “Pledged Stock” shall not include (A) any lease, license, contract or agreement to which a any Grantor is a party (other than contracts between or among Holdings and its subsidiaries), and any of its rights or interests thereunder interest thereunder, if and for so long as to the grant of such extent that a security interest shall constitute is prohibited by or result in violation of (i) the unenforceability any law, rule or regulation applicable to such Grantor or any asset or property of any right Grantor (with no requirement to obtain the consent of any Governmental Authority, including without limitation, no requirement to comply with the Grantor therein Federal Assignment of Claims Act or any similar statute), or (ii) in a breach term, provision or termination pursuant to the terms of, or a default under, condition of any such lease, license, contract or agreement (other than to the extent that any unless such term law, rule, regulation, term, provision or condition would be rendered ineffective with respect to the creation of the security interest hereunder pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided, however, ; provided however that the Collateral shall include (and such security interest shall attach attach) immediately at such time as the condition causing such unenforceability contractual or legal prohibition shall no longer be remedied and, applicable and to the extent severable, shall attach immediately to any portion of such lease, license, contract or agreement that does not result in any of subject to the consequences prohibitions specified in (i) or (ii) above; provided further that the exclusions referred to in clause (A) of this Section 3.01(b) shall not include any Proceeds of any such lease, license, contract or agreement unless such Proceeds also constitute Excluded Assets; (B) any assets the pledge of or granting a security interest in which would (i) violate any law, rule or regulation applicable to such Grantor (with no requirement to obtain the consent of any Governmental Authority) or (ii) require a consent, approval, or other authorization of a landlord or other third party, in the case of this subclause (ii) only, if such consent, approval or other authorization cannot be obtained after the use of commercially reasonable efforts by the Grantors (provided that there shall be no requirement to obtain the consent of any Governmental Authority); (C) any Deposit Accounts specifically and exclusively used (1) for payroll, payroll taxes, workers’ compensation or unemployment compensation, pension benefits and other similar expenses to or for the benefit of any Grantor’s employees and accrued and unpaid employee compensation (including salaries, wages, benefits and expense reimbursements), (2) as zero balance deposit accounts, (3) for trust or fiduciary purposes in the ordinary course of business and (4) for all taxes required to be collected or withheld (including, without limitation, federal and state withholding taxes (including the employer’s share thereof), taxes owing to any proceeds governmental unit thereof, sales, use and excise taxes, customs duties, import duties and independent customs brokers’ charges) for which any Grantor may become liable; (D) any other Excluded Accounts (as defined in the Credit Agreement); (E) any interest of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests a Grantor in any Person “Bank Property” (as defined in that is not a wholly-owned Subsidiary wherecertain Amended and Restated Consumer Credit Card Program Agreement dated November 5, pursuant to 2009, by and between ▇. ▇. ▇▇▇▇▇▇ Corporation, Inc. and GE Money Bank (as in effect on the organizational documents or any related shareholders or similar agreement of such Persondate hereof, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof“GE Agreement”)); and (CF) any assets, if in the reasonable judgment of the Administrative Agent and the Parent Borrower, the burden, cost or consequences of creating or perfecting such pledges or security interests in such assets owned by any Grantor on shall be excessive in view of the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted benefits to be incurred pursuant to Section 4.09(b)(4) of obtained by the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedsLenders therefrom.
(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 by any description that reasonably approximates the description of such Grantor, whether now owned or hereafter acquired or words of similar effect as being of an equal or lesser scope or with greater detail, Collateral contained in this Agreement 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 (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 relatesGrantor. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon request. .
(d) Each Grantor also ratifies its authorization for the Collateral Administrative Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(de) The Security Interest is granted as security only 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 Article 9 Collateral.
Appears in 2 contracts
Sources: Credit Agreement (J C Penney Co Inc), Guarantee and Collateral Agreement (J C Penney Co Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in), in all right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):), including:
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles, including all Intellectual Property and Licenses;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) all Letter-of of-Credit Rights;
(xi) all Commercial Tort Claims described in on Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above books and any property specifically excluded from any defined term used in any clause of this section);records pertaining to the Article 9 Collateral; and
(xiii) all books and records; and
(xiv) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), ; provided, however, that such 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 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 agreement that does not result in any stock excluded from the definition of the consequences specified in (i) “Pledged Stock” or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedsExcluded Assets.
(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 Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as “all assets assets” of such Grantor, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detaileffect, 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 (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. The 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 office 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, and each Grantor agrees to execute and deliver any and all agreements, instruments, documents and papers as the Collateral Agent may reasonably request for purposes of the foregoing.
(dc) The Security Interest is granted as security only 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.9
Appears in 2 contracts
Sources: Credit Agreement (Sportsman's Warehouse Holdings, Inc.), Guarantee and Collateral Agreement (Sportsmans Warehouse Holdings Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in, in all right, title or interest in or to any and all of the following assets and properties 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 in the following (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) all Letter-of of-Credit Rights;
(xi) all Commercial Tort Claims described in on Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above books and any property specifically excluded from any defined term used in any clause of this section);records pertaining to the Article 9 Collateral; and
(xiii) all books and records; and
(xiv) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
(b) . provided, that however, notwithstanding anything herein to the contraryforegoing, in no event shall the security interest granted hereunder under this Section 4.01(a) shall attach to: (A) the Excluded Equity Interests; (B) insofar as the Pledged Stock secures Domestic Obligations, nor more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary (it being understood and agreed that such limitation shall not apply insofar as any such Pledged Stock secures Foreign Obligations); (C) any governmental license, permit, registration or other authorization of any Grantor or any of its rights or interests thereunder, if and for so long as the grant of such security interest is not permitted by or is ineffective under any law or shall constitute or result in (x) the unenforceability of any right of such Grantor therein or (y) a breach or termination pursuant to the terms “Article 9 Collateral” of, or “Pledged Stock” include a default under, any such authorization (Aother than to the extent any such law or term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity); provided, further, 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 authorization that does not result in any of the consequences specified in clause (x) or (y) above, including any Proceeds of such authorization; (D) any contract or agreement to which a any Grantor is a party or any of its rights or interests thereunder thereunder, if and for so long as the grant of such security interest shall constitute or result in (ix) the unenforceability of any right of the such Grantor therein or (iiy) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), ; provided, howeverfurther, 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 agreement that does not result in any of the consequences specified in clause (ix) or (iiy) includingabove, without limitation, including any proceeds Proceeds of such contract or agreement, ; and (BE) more than 65% any intent-to-use Trademark application pending in the United States Patent and Trademark Office unless and until acceptable evidence of use of the issued applicable Trademark has been filed with and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, accepted by such office pursuant to the organizational documents or any related shareholders or similar agreement of such Person▇▇▇▇▇▇ Act, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as that granting a security interest in such Trademark application prior to such filing would adversely affect the contract enforceability or other agreement validity or result in which cancellation of such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedsTrademark application.
(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 Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets assets” of such Grantor, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detaileffect, 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 (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, a sufficient description of the real property to which such Article 9 Collateral relates, it being understood, however, that no fixture filings will be required to be made. Each The Grantor agrees to provide such information to the Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or and the United States Copyright Office (or any successor office or any similar office in any other countryoffice) 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 Grantor to the signature of any GrantorCollateral Agent in Intellectual Property included in the Article 9 Collateral, and naming any Grantor or the Grantors as debtors and the Collateral Agent as secured party.
(dc) The Security Interest is granted as security only 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.
Appears in 2 contracts
Sources: Guarantee and Pledge Agreement (Cb Richard Ellis Group Inc), Guarantee and Pledge Agreement (Cb Richard Ellis Group Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and 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), in all right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit AccountsDocuments;
(iv) all Documents (other than title documents relating to vehicles)Equipment;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Instruments;
(viiivii) all Inventory;
(ixviii) all Investment Property;
(xix) all Letter-of of-Credit Rights;
(x) all Commercial Tort Claims;
(xi) Commercial Tort Claims described in Schedule IV;all books and records pertaining to the Article 9 Collateral; and
(xii) all other personal property (other than leasehold interests in real property) to the extent not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
(b) provided, that notwithstanding . Notwithstanding anything herein to the contrary, in no event shall the Collateral include, and no Grantor shall be deemed to have granted a security interest granted hereunder attach toin any (I) General Intangible, nor the terms “Article 9 Collateral” Instrument, license, property right, permit or “Pledged Stock” include (A) any other 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 (ix) the abandonment, invalidation or unenforceability of any right right, title or interest of the Grantor therein therein, (y) a violation of a valid and enforceable restriction in respect of such General Intangible, Instrument, license, property right, permit or any other contract or agreement or other such rights (1) in favor of a third party or (ii2) in under any law, regulation, permit, order or decree of any Governmental Authority or (z) a breach or termination (or result in any party thereto having the right to terminate) pursuant to the terms of, or a default under, such General Intangible, Instrument, license, property right, permit or any such other contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), ; provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability or breach or termination, as the case may be, shall be remedied and, to the extent severable, shall attach immediately to any portion of such General Intangible, Instrument, license, property right, permit or any other contract or agreement that does not result in any of the consequences specified in the immediately preceding clause (ix), (y) or (iiz) including, without limitation, any proceeds of such General Intangible, Instrument, license, property rights, permit or any other contract or agreement, ; (BII) more than 65% of the issued and outstanding voting Equity Interests of in any Foreign Subsidiary, (III) any Equity Interest in any Non-Significant Subsidiary, (IV) any Equity Interest in any Permitted Syndication Subsidiary, any Securitization Subsidiary or any Equity Interests in any Person that is not a wholly-owned Permitted Joint Venture Subsidiary where, pursuant to the organizational documents extent the pledge of the Equity Interest in such Subsidiary is prohibited by any applicable Contractual Obligation or requirement of law, (V) any related shareholders vehicle or similar agreement other asset subject to certificate of such Persontitle, (VI) any asset that requires perfection through control agreements (including, to the grant extent required in the relevant jurisdiction for deposit accounts and investment property), (VII) any minority Equity Interests, (VIII) any assets with respect to which the Collateral Agent shall reasonably determine that the cost of such creating and/or perfecting a security interest therein is excessive in relation to the benefit to the Secured Parties or lien is prohibited that the granting or prohibited without the consent perfection of the equity holders of such Person a security interest therein would violate applicable law or regulation and (IX) any assets (other than the Borrower any General Intangible, Instrument, license, property right, permit or any wholly-owned Subsidiary thereof); and (Cother contract or agreement) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to by Section 4.09(b)(46.02(c) or (n) of the Indenture Credit Agreement, to the extent and for so long as such Lien exists and the contract terms of the Indebtedness or other agreement obligations secured thereby prevent the grant of a security interest in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedshereunder.
(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 Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets assets” of such Grantor, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detaileffect, 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 (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. .
(c) Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office or any similar office in any other countryoffice) 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.
(d) The Security Interest is granted as security only 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.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Community Health Systems Inc), Guarantee and Collateral Agreement (Community Health Systems Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a security interest and lien (the “Security Interest”) in), in and on all right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Commercial Tort Claims set forth on Schedule VI hereto;
(iii) all Chattel Paper;
(iiiiv) all Deposit Accounts;
(ivv) all Documents (other than title documents relating to vehicles)Documents;
(vvi) all Equipment;
(vivii) all FCC Licenses (except solely to the extent prohibited by applicable law (it being understood and acknowledged that as of the date hereof applicable law does not permit the grant of a security interest directly in an FCC License or the public interest in the underlying spectrum)) and (i) the present and future value to the Grantors of such FCC Licenses, and the right to receive any payment of money in respect of (including on account of the transfer, assignment or disposition of) such FCC Licenses or any present or future value to the Grantors of such FCC Licenses (including, without limitation, general intangibles in respect of such FCC Licenses or the value to the Grantors thereof for money due or to become due to the Grantors or their respective representatives or successors in respect of any of the foregoing), (ii) any Proceeds, products, offspring, accessions, rents, profits, income or benefits to the Grantors of all FCC Licenses or any present or future value to the Grantors of all FCC Licenses, and (iii) to the maximum extent not prohibited by law, all other rights incident or appurtenant to the FCC Licenses;
(viii) all General Intangibles;
(viiix) all Payment Intangibles;
(x) all Goods;
(xi) all Instruments;
(viiixii) all Inventory;
(ixxiii) all Investment Property;
(xxiv) all Intellectual Property;
(xv) all Letter-of of-Credit Rights;
(xixvi) Commercial Tort Claims described in Schedule IVall Pledged Collateral;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiiixvii) all books and recordsrecords pertaining to the Collateral;
(xviii) all Supporting Obligations; and
(xivxix) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;. Notwithstanding the foregoing, the Security Interest shall not extend to, and the term “Collateral” (and any component definition thereof) shall not include, any Excluded Property.
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction and in any initial relevant office any (i) financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (iA) indicate the Collateral as all assets of such Grantor, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detaileffect, 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 (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (bii) in addition to the case foregoing and to the documents referred to below, all other documents as may be necessary or appropriate for the purpose of a financing statement filed as a fixture filing perfecting, confirming, continuing, enforcing or covering Article 9 Collateral constituting minerals protecting the Security Interest granted by each Grantor, without the signature of any Grantor if permitted by applicable law, and naming any Grantor or the like Grantors as debtors and the Collateral Agent as secured party, together with all information necessary or appropriate to be extracted or timber to be cut, a sufficient description of the real property to which such Article 9 Collateral relatesfiled therewith. Each Grantor agrees to provide such information to the Collateral Agent promptly upon written request. Each Grantor also ratifies its authorization for the The Collateral Agent agrees, upon request by the Borrower and at its expense, to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior furnish copies of such filings and other documents to the date hereof. Borrower.
(c) The Collateral Agent is further irrevocably authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office or any similar office in any other countryoffice) 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 its expense, to furnish copies of such filings to the Borrower.
(d) The Security Interest is granted as security only and 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 Article 9 Collateral. Nothing contained in this Agreement shall be construed to make the Collateral Agent or any other Secured Party liable as a shareholder of any corporation, 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 exercise its rights and remedies and 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 (FiberTower CORP), Collateral Agreement (FiberTower CORP)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, including obligations under the Guarantee Agreement, each Grantor hereby collaterally assigns and pledges to the Collateral Administrative Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Administrative Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, in all right, title or and interest in or in, to and under any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Papercash, Deposit Accounts and Securities Accounts;
(iii) all Deposit AccountsChattel Paper;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all InstrumentsGoods;
(viii) all Instruments;
(ix) all Inventory;
(ixx) all Investment Property;
(xxi) Letter-all Commercial Tort Claims described on Schedule II;
(xii) all Receivables and Receivables Records;
(xiii) all Letter of Credit Rights;
(xixiv) Commercial Tort Claims described all property of such Grantor held by any Secured Party, including all property of every description, in Schedule IVthe custody of or in transit to such Secured Party for any purpose, including safekeeping, collection or pledge, for the account of such Grantor or as to which such Grantor may have any right or power, including but not limited to cash;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiiixv) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xivxvi) to the extent not otherwise included, all Proceeds proceeds and products of any and all Supporting Obligations of the foregoing and all supporting obligations, collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, ; provided that notwithstanding anything herein to the contrarycontrary in this Agreement, in no event this Agreement shall the not constitute a grant of a security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include in (A) any contract or agreement motor vehicles and other assets subject to which a Grantor is a party or any certificates of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreementtitle, (B) Equity Interests of any Subsidiary that is directly or indirectly owned by a CFC, (C) more than 65% of the issued and outstanding voting Equity Voting Interests of each Subsidiary that is a CFC and that is directly held by the Borrower or by any Foreign Domestic Subsidiary or any of the Borrower, (D) Equity Interests in any Person that is not a wholly(other than Wholly-owned Subsidiary where, pursuant Owned Subsidiaries) to the organizational documents or any related shareholders or similar agreement extent not permitted to be pledged by the terms of such Person’s organizational or joint venture documents, (E) any asset with respect to which the grant Administrative Agent and the Borrower reasonably determine that the costs of obtaining such a security interest or lien perfection thereof are excessive in relation to the value to the Lenders of the security to be afforded thereby, (F) assets (including interests in any partnership, joint venture or non Wholly-Owned Subsidiary of the Borrower) to the extent a pledge thereof or security interest therein is prohibited by applicable Law, regulation or prohibited without agreements in effect on the consent date of this Agreement or the equity holders date of acquisition of such Person asset from a third party and containing enforceable anti-assignment clauses not overridden by the Uniform Commercial Code or other applicable Law, (G) any lease, license or other agreement or any property subject to a purchase money security interest or Capital Lease Obligation or similar arrangement which is permitted under the Loan Documents to the extent that a grant of a security interest therein would violate or invalidate such lease, license, or agreement, purchase money security interest or Capital Lease Obligation or similar arrangement or create a right of termination in favor of any party thereto (other than a Loan Party) after giving effect to the Borrower applicable anti-assignment provisions of the Uniform Commercial Code or other applicable Law, other than proceeds and receivables thereof the assignment of which is expressly deemed effective under applicable Law notwithstanding such prohibition, (H) Equity Interests of any wholly-owned Domestic Subsidiary thereof); and whose only asset is the Equity Interests of Foreign Subsidiaries, (CI) assets any real property with a fair market value of less than $1,000,000, (J) intercompany Indebtedness owed by any Subsidiary that is a CFC or is directly or indirectly owned by any a CFC solely to the extent a pledge thereof could reasonably be expected to result in adverse tax consequences, or (K) “intent-to-use” trademark or service ▇▇▇▇ applications. Each Grantor on shall, if requested to do so by the date hereof or hereafter acquired and any proceeds thereof that are subject Administrative Agent, use commercially reasonable efforts to a Lien securing Indebtedness permitted obtain consents in relation to be incurred such of the items otherwise excluded from the Collateral pursuant to Section 4.09(b)(4clause (F) or (G) of the Indenture immediately preceding sentence. Notwithstanding anything to the extent contrary herein, immediately upon the ineffectiveness, lapse or termination of any restriction or condition set forth in this paragraph, the Collateral shall include, and for so long the Borrower shall be deemed to have granted a security in, all relevant previously restricted or conditioned rights, interests or other assets, as the contract case may be, as if such restriction or other agreement condition had never been in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedseffect.
(cb) 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 (including fixture filings) 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 Administrative 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, whether now owned or hereafter acquired acquired” of such Grantor or words of similar effect as being of an equal or lesser scope or with greater detaileffect, 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 (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. Each Grantor also ratifies its authorization for the Collateral Administrative Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto with respect to the Collateral or any part thereof naming any Grantor as debtor or the Grantors as debtors and the Administrative Agent as secured party, if filed prior to the 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 office 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.
(dc) The Security Interest is granted as security only 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 Article 9 Collateral.9
Appears in 2 contracts
Sources: Credit Agreement (Lmi Aerospace Inc), Credit Agreement (Lmi Aerospace Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Secured Obligations, each Grantor Pledgor hereby assigns and pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Second-Priority Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Second-Priority Secured Parties, a security interest (the “Security Interest”) in, in all right, title or and interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all collection 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 (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all InstrumentsGeneral Intangibles;
(viii) loans receivable and all Inventory;other Payment Intangibles
(ix) all Investment PropertyGoods;
(x) Letter-of Credit Rightsall Instruments;
(xi) Commercial Tort Claims described in Schedule IVall 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 other personal property Inventory (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this sectionincluding reusable water containers);
(xiii) all books and records; andInvestment Property other than the Pledged Collateral, which is governed by Article II;
(xiv) all Letters of Credit and Letter of Credit Rights;
(xv) all Commercial Tort Claims, individually in excess of $3,000,000, as described from time to time on Schedule IV;
(xvi) all minerals, oil, gas and As-Extracted Collateral;
(xvii) all books and records pertaining to the Article 9 Collateral; and
(xviii) substitutions, replacements, accessions, products and Proceeds (including insurance proceeds, licenses, royalties, income, payments, claims, damages and proceeds of suit) and to the extent not otherwise included, all Proceeds, Supporting Obligations and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;. Notwithstanding anything to the contrary in any Notes Indenture 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 Notes Indenture Documents with respect to Collateral need not be satisfied with respect to, the Excluded Property.
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(c) 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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (ai) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (bii) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office or any similar office in any other countryoffice) 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. 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 of such Pledgor constituting Patents, Trademarks or Copyrights.
(dc) The Security Interest is granted as security only 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 Article 9 Collateral.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. (ai) As security for To secure the prompt payment or performance, as the case may be, and performance in full when due, whether by lapse of time, acceleration or otherwise, of all of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit obligations of the Secured PartiesCompany under the Loan Documents (the “Obligations”), and the Company hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, Buyer a continuing security interest (the “Security Interest”) 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 following, whether 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 (collectively, the “Article 9 Collateral”):
(i1) all Accounts;
(ii2) all cash and cash equivalents;
(3) all Chattel Paper (including Electronic Chattel Paper);
(iii4) all Contract Rights;
(5) all Deposit Accounts;
(iv6) all Documents (other than title documents relating to vehicles)Documents;
(v7) all Equipment;
(vi8) all Financial Assets;
(9) all Fixtures;
(10) all General Intangibles;
(vii11) all InstrumentsGoods;
(viii12) all Instruments (including, without limitation, all promissory notes and certificated securities);
(13) all Inventory;
(ix14) all Investment Property;
(x15) all Letter-of of-Credit Rights;
(xi16) Commercial Tort Claims described in Schedule IVall Payment Intangibles;
(xii17) 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 (other than leasehold interests in real property) not otherwise described above (except for of any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and recordskind or type whatsoever owned by the Company; and
(xiv21) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided. Notwithstanding the foregoing, that notwithstanding anything herein to the contraryBuyer will not have a security interest in the capital stock of LDI owned by the Company or any proceeds from the Company’s investment in LDI, as further defined in the CVR, and the capital stock of LDI or any proceeds from the Company’s investment in LDI is not Collateral. Notwithstanding the foregoing, in no event shall the Collateral include, and the Company shall not be deemed to have granted a security interest granted hereunder attach toin, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in a breach or termination pursuant to the terms oflicense, or a default under, any such contract or agreement (other than to which the Company is a party, but only to the extent that any such term would be rendered ineffective pursuant to Sections 9-406a grant would, 9-407, 9-408 or 9-409 of under the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion terms of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) includinglicense, without limitation, any proceeds of such contract or agreement, (B) more than 65% result in a breach of the issued terms thereof or constitute a default thereunder. The parties hereto hereby acknowledge and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person agree that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without created hereby in the consent Collateral constitutes continuing collateral security for all of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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 GrantorObligations, whether now owned existing or hereafter acquired or words of similar effect arising.
3.2 All references in the Purchase and Loan Agreement to the “Agreement” shall refer to the Purchase and Loan Agreement as being of an equal or lesser scope or with greater detail, and (ii) contain amended hereby. To the information required by Article 9 extent the terms of the Uniform Commercial Code of each applicable jurisdiction for Note is inconsistent with the filing of any financing statement or amendment, including (a) whether such Grantor is an organizationterms hereof, the type of organization and any organizational identification number issued Note is hereby modified to such Grantor and (b) in reflect the case of a financing statement filed as a fixture filing 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 terms hereof.
3.3 Buyer agrees to provide such information amend its UCC-1 filing to reflect the changes in Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 partywhich it has a security interest per Section 3.1 above.
(d) The Security Interest is granted as security only 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.
Appears in 2 contracts
Sources: Securities Purchase, Loan and Security Agreement (Capstone Therapeutics Corp.), Securities Purchase, Loan and Security Agreement
Security Interest. (a) 4.1. As security for the payment or prompt performance, as the case may be, observance and payment in full of the all Obligations, each Grantor we hereby assigns grant to you a continuing security interest in, a lien upon and pledges to the Collateral Agent, its successors and assigns, for the benefit a right of the Secured Partiessetoff against, and we hereby grants assign, transfer, pledge and set over to you the Collateral Agent, its successors and assigns, for the benefit following (which together with any of the Secured Parties, our other property in which you may at any time have a security interest or lien, whether pursuant to this Agreement or any supplement hereto, or otherwise, are herein collectively referred to as the "Collateral"): All present and future (a) accounts; (b) moneys, securities and other property and the “Security Interest”proceeds thereof, now or hereafter held or received by, or in transit to you from or for us, whether for safekeeping, pledge, custody, transmission, collection or otherwise, and all of our deposits (general or special), balances, sums and credits with you at any time existing; (c) in, all of our right, title or interest in or to any and interest, and all of our rights, remedies, security and liens, in, to and in respect of the following assets Accounts and properties now owned other Collateral, including, without limitation, rights of stoppage in transit, replevin, repossession and reclamation and other rights and remedies of an unpaid vendor, lienor or at secured party, guaranties or other contracts of suretyship with respect to the Accounts, deposits or other security for the obligation of any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any Account Debtor, and credit and other insurance; (d) all of our right, title and interest in, to and in respect of all goods relating to, or interest which by sale have resulted in, Accounts including, without limitation, all goods described in invoices, documents, contracts or instruments with respect to, or otherwise representing or evidencing, any Accounts or other Collateral, including, without limitation, all returned, reclaimed or repossessed goods; (collectively, the “Article 9 Collateral”):
(ie) all Accounts;
deposit accounts; (iif) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (books, records, ledger cards, computer programs, and other than title documents property and general intangibles evidencing or relating to vehiclesthe Accounts and any other Collateral or any Account Debtor, together with the file cabinets or containers in which the foregoing are stored ("Records");
; (v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xiig) all other personal property general intangibles of every kind and description, including, without limitation, trade names and trademarks, and the goodwill of the business symbolized thereby, patents, copyrights, licensee and Federal, State and local tax refund claims of all kinds; and (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiiih) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any proceeds of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach toany form, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds claims against third parties for loss or damage to or destruction of such contract any or agreement, (B) more than 65% all of the issued foregoing.
4.2. We shall keep and outstanding voting Equity Interests maintain, at our cost and expense, satisfactory and complete books and records of all Accounts, all payments received or credits granted thereon, and all other dealings therewith. At such times as you may request, we shall deliver to you all original documents evidencing the sale and delivery of goods or the performance of services which created any Accounts, including but not limited to all original contracts, orders, invoices, bills of lading, warehouse receipts, delivery tickets and shipping receipts, together with schedules describing the Accounts and/or written confirmatory assignments to you of each Account, in form and substance satisfactory to you and duly executed by us, together with such other information as you may request. In no event shall the making or the failure to make or the content of any Foreign Subsidiary schedule or assignment or our failure to comply with the provisions hereof be deemed or construed as a waiver, limitation or modification of your security interest in, lien upon and assignment of the Collateral or our representations, warranties or covenants under this Agreement or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedssupplement hereto.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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.
Appears in 2 contracts
Sources: Loan Agreement (Pny Technologies Inc), Loan Agreement (Pny Technologies Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Secured Obligations, each Grantor Pledgor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, in all right, title or and interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all InventoryIntellectual Property;
(ix) all Investment PropertyGoods and Inventory;
(x) Letter-all Investment Property including the Pledged Collateral;
(xi) all Letters of Credit and Letter of Credit Rights;
(xixii) all Commercial Tort Claims as described in on Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section)II hereto;
(xiii) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xiv) to the extent not otherwise included, all Proceeds proceeds, Supporting Obligations and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;.
(a) any vehicle covered by a certificate of title or ownership, whether now owned or hereafter acquired to the extent the filing of a financing statement cannot perfect a security interest therein, (b) providedany Equity Interests owned on or acquired after the Closing Date (other than, that notwithstanding anything herein in the case of shareholder agreements or other contractual obligations, (x) Equity Interests in the Borrower or (y) in the case of any person which is a Wholly-Owned Subsidiary, Equity Interests in such person) in accordance with the Credit Agreement if, and to the contraryextent that, and for so long as doing so would violate applicable law or regulation or a shareholder agreement or other contractual obligation (in each case, after giving effect to the Anti-Non-Assignment Clauses) binding on such Equity Interests, (c) any assets to the extent that, and for so long as, such grant of a security interest therein would violate applicable law or regulation or, in no event shall the case of assets acquired after the Closing Date, such grant of a security interest granted hereunder attach totherein would violate an enforceable contractual obligation binding on such assets that existed at the time of the 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 after the Closing Date with Indebtedness of the type permitted pursuant to Section 6.01(i) of the Credit Agreement that is secured by a Permitted Lien) permitted by this Agreement, nor in each case, after giving effect to the terms “Article 9 Collateral” or “Pledged Stock” include Anti-Non-Assignment Clauses, (Ad) any Pledgor’s right, title or interest in any license, contract or agreement to which a Grantor such Pledgor is a party or any of its rights right, title or interests interest thereunder if and for so long as to the extent, but only to the extent, that such a grant would violate the terms of such security interest shall constitute license, contract or agreement, or result in (i) the unenforceability of any right of the Grantor therein or (ii) in a breach or termination pursuant to 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 that any such term would be rendered ineffective pursuant to Sections 9the Anti-406, 9Non-407, 9-408 or 9-409 of the New York UCC Assignment Clauses or any other applicable law or regulation (including Title 11 of the United States Code) or principles of equity); provided that, providedimmediately upon the ineffectiveness, howeverlapse or termination of any such provision, that the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest shall attach immediately at in, all such time rights and interests as the condition causing if such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result provision had never been in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreementeffect, (Be) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary Equipment or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets asset owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof Pledgor that are is subject to a Lien securing Indebtedness purchase money lien or a Capital Lease Obligation, in each case, as permitted to be incurred pursuant to Section 4.09(b)(4) of by the Indenture to the extent and for so long as Credit Agreement, if the contract or other agreement in which such Lien is granted (or the documentation providing for such IndebtednessCapital Lease Obligation) validly prohibits or requires the consent of any person other than a Pledgor or a Subsidiary of a Pledgor as a condition to the creation of any other Lien security interest on such Equipment or asset and, in each case, such prohibition or requirement is permitted by the Credit Agreement, (f) 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 (g) those assets as to which the Borrower and proceeds.
the Administrative Agent shall reasonably determine in writing that such assets shall be excluded from Collateral hereunder pursuant to the Agreed Security Principles. In addition, the Security Interest in any asset of EVERTEC Costa Rica, S.A. (other than any Equity Interests and related assets described in clauses (c), (d) Each Grantor hereby irrevocably authorizes and (e) of Section 2.01) shall be automatically released upon receipt by 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 of a certificate of a Responsible Officer of the Article 9 Collateral or any part thereof and amendments thereto Borrower certifying that (i) indicate the Collateral as all assets of such Grantor, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor release is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office or any similar office in any other country) such documents as may be necessary or advisable in order for the purpose of perfectingEVERTEC Costa Rica, 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.
(d) The Security Interest is granted as S.A. to grant a security only and shall not subject the Collateral Agent or any other Secured Party to, or interest in any way alter or modify, any obligation or liability of any Grantor with respect such asset to or arising out of the Article 9 Collateral.a third party and
Appears in 2 contracts
Sources: Collateral Agreement, Collateral Agreement (EVERTEC, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor Guarantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, in all right, title or and interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all InstrumentsGoods;
(viii) all Instruments;
(ix) all Inventory;
(ixx) all Investment Property;
(xxi) all Letter-of of-Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section)Commercial Tort Claims listed on Schedule 4.01 hereto;
(xiii) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xiv) to the extent not otherwise included, all Proceeds proceeds, Supporting Obligations and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;. Notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in (a) any vehicle covered by a certificate of title or ownership, (b) any assets (including Equity Interests) with respect to which the Collateral and Guarantee Requirement or the other paragraphs of Section 5.10 of the Credit Agreement need not be satisfied by reason of Section 5.10(g) of the Credit Agreement, (c) any assets to the extent that, as of the Effective Date, and for so long as, such grant of a security interest would violate a contractual obligation or applicable law binding on such asset, (d) any property of any Person acquired by a Guarantor after the Effective Date pursuant to Section 6.04(l) 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 property and (B) such law or obligation existed at the time of the acquisition thereof and was not created or made binding upon such property in contemplation of or in connection with the acquisition of such Subsidiary (provided that the foregoing clause (B) shall not apply in the case of a joint venture, including a joint venture that is a Subsidiary) provided that each Guarantor shall use its commercially reasonable efforts to avoid any such restriction described in this clause (d), or (e) any Letter of Credit Rights to the extent any Guarantor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose.
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(c) 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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (ai) whether such Grantor Guarantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Guarantor, (bii) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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” or words of similar effect. Each Grantor Guarantor agrees to provide such information to the Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(dc) The Security Interest is granted as security only 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.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Celanese CORP), Guarantee and Collateral Agreement (Celanese CORP)
Security Interest. (a) As security for the payment or performance, as the case may be, in full when due of the Obligations, including the Guarantees of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, in all such Grantor’s right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all InstrumentsGeneral Intangibles;
(viii) all InventoryIntellectual Property;
(ix) all Investment PropertyGoods;
(x) Letter-of Credit Rightsall Instruments;
(xi) Commercial Tort Claims described in Schedule IVall Inventory;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section)Investment Property;
(xiii) all books and recordsrecords pertaining to the Article 9 Collateral;
(xiv) all Letters of Credit and Letter of Credit Rights;
(xv) all Money; and
(xivxvi) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all Supporting Obligations, collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Time Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in), in all right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) all Letter-of of-Credit Rights;
(xi) all Commercial Tort Claims described in Schedule IVClaims;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above books and any property specifically excluded from any defined term used in any clause of this section);records pertaining to the Article 9 Collateral; and
(xiii) all books and records; and
(xiv) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
(b) ; provided, however, that notwithstanding anything herein to any of the contraryother provisions set forth in this Section 4, in no event shall the security interest granted hereunder under this Section 4 attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedsExcluded Collateral.
(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 Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets assets” of such Grantor, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detaileffect, 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 (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(dc) The Security Interest is granted as security only 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.
Appears in 2 contracts
Sources: Second Lien Guarantee and Collateral Agreement (Itc Deltacom Inc), First Lien Guarantee and Collateral Agreement (Itc Deltacom 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 of the Obligations, each Grantor Pledgor hereby assigns and 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 first priority security interest (the “Security Interest”) in, in all right, title or and interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-all Letter of Credit Rights;
(xi) all Commercial Tort Claims described in Schedule IVClaims;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this sectionthe foregoing clauses);
(xiii) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xiv) to the extent not otherwise included, all Proceeds proceeds, Supporting Obligations and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
(b) provided, that notwithstanding . Notwithstanding anything herein to the contrarycontrary in this Agreement, in no event this Agreement shall the not constitute a grant of a security interest granted hereunder attach toin, nor and the terms definitions of “Security Interest” and “Article 9 Collateral” or “Pledged Stock” include shall not include, (Aa) 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 a Grantor such Pledgor is a party or any of its rights right, title or interests interest thereunder if and for so long as to the extent, but only to the extent, that such a grant would, under the terms of such security interest shall constitute license, contract or agreement, result in (i) the unenforceability of any right of the Grantor therein or (ii) in a breach or termination pursuant to of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any such license, contract or agreement to which such Pledgor is a party (other than to the extent that any such term would be rendered ineffective pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law (including, without limitation, Title 11 of the United States Code) or principles of equity); provided that immediately upon the ineffectiveness, providedlapse or termination of any such provision, howeverthe Collateral shall include, that and such Pledgor shall be deemed to have granted a security interest shall attach immediately at in, all such time rights and interests as the condition causing if such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result provision had never been in any of the consequences specified in (i) effect or (iif) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets Equipment owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof Pledgor that are is subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as purchase money lien or a Capital Lease Obligation if the contract or other agreement in which such Lien is granted (or the documentation providing for such IndebtednessCapital Lease Obligation) validly prohibits or requires the consent of any person other than the Pledgors as a condition to the creation of any other Lien security interest on such assets and proceedsEquipment.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (ai) whether such Grantor ▇▇▇▇▇▇▇ is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (bii) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. Each Grantor also ratifies its authorization for request (acting at the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereofwritten direction of 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 or any similar office in any other countryoffice) 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. 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 (acting at the written direction of Required Lenders), in its reasonable discretion.
(dc) The Security Interest is granted as security only 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.9
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Claires Stores Inc), Term Loan Credit Agreement (Claires Stores Inc)
Security Interest. (a) 1.1 As security for the prompt and complete payment when due (whether on the payment dates or performance, as otherwise) of all the case may be, in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby Borrower grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, Agent a security interest (the “Security Interest”) in all of Borrower’s right, title, and interest in, all right, title or interest in or to any and under all of Borrower’s personal property and other assets including without limitation the following assets and properties (except as set forth herein) 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, title or interest (collectively, the “Article 9 Collateral”):
): (a) Receivables; (b) Equipment; (c) Fixtures; (d) General Intangibles; (e) Inventory; (f) Investment Property; (g) Deposit Accounts; (h) Cash; (i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) Goods; and all other tangible and intangible personal property (other than leasehold interests 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 real property) the possession or under the control of the Agent; and, to the extent not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) included, all Proceeds and products of any and all Supporting Obligations each of the foregoing and all accessions to, substitutions and replacements for, and rents, profits and products of each of the foregoing.
1.2 Notwithstanding the broad grant of the security interest set forth in Section 3.1 above, the Collateral shall not include (“Excluded Collateral”): (a) any “intent to use” trademarks at all times prior to the first use thereof, whether by the actual use thereof in commerce, the recording of a statement of use with the United States Patent and Trademark Office or otherwise, provided, that upon submission and acceptance by the United States 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 provision) 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 and guarantees given by any Person 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 foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 acquisition of such security interest shall constitute or result in property (i) the unenforceability of other than any right of the Grantor therein or (ii) in a breach or termination pursuant property acquired by Borrower subject to the terms of, or a default under, 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, 9-407, 9-408 or 9-409 of the New York UCC (or any other applicable law or principles Section) of equityArticle 9 of the UCC), providedincluding any Equity Interests of JV Entities owned by Borrower or any Subsidiary thereof, however, 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 agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person property owned by Borrower that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a purchase money Lien securing Indebtedness or a capital lease (and the proceeds thereof) permitted to be incurred under this Agreement if the contractual obligation pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or in the documentation document providing for such Indebtednesscapital lease) validly prohibits or requires the consent of any person other than Borrower which has not been obtained as a condition to the creation of of, any other Lien on such assets and proceedsproperty.
1.3 Upon termination of this Agreement and repayment in full of all Secured Obligations (c) Each Grantor hereby irrevocably authorizes 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 are reasonably necessary for Borrower to accomplish the foregoing, all at Borrower’s sole cost and expense.
1.4 The security interest granted in Section 3.1 of this Agreement shall continue until the Secured Obligations (other than any time inchoate indemnity obligations, any 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 from time any other obligations which, by their terms, are to time survive the termination of this Agreement) have been paid in full and Lenders have no further commitment or obligation hereunder or under the other Loan Documents to file make any further Advances, and 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 relevant jurisdiction financing statements, security agreements, collateral assignments, notices, control agreements or other documents to perfect SVB’s security interest in such cash collateral) for Secured Obligations constituting Bank Services, if any, and Lenders and the Agent shall, at Borrower’s expense, take all actions reasonably requested by Borrower to 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 initial financing statements statements, security agreements, collateral assignments, notices, control agreements or other documents to perfect SVB’s security interest in such cash collateral) in an amount equal to at least (including fixture filingsi) 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 contrary herein, it is agreed and understood by SVB, on behalf of itself and its applicable Affiliates, that any cash collateral already, as of the Closing Date, securing letters of credit constituting Bank Services is sufficient cash collateral with respect to the Article 9 Collateral face amounts of such letters of credit and no further cash collateral or other arrangements shall be required in respect thereof at the termination or acceleration of the Secured Obligations hereunder.
1.5 Borrower acknowledges that it previously has entered, and/or may in the future enter, into Bank Services Agreements with SVB. Regardless of the terms of any part thereof Bank Services Agreement, ▇▇▇▇▇▇▇▇ agrees that any amounts Borrower owes SVB thereunder shall be deemed to be Secured Obligations hereunder and amendments thereto that (i) indicate 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 as all assets of such Grantor, whether now owned or hereafter acquired or words of similar effect as being of an equal or lesser scope or with greater detailgranted herein (subject only to Addendum 4 and Permitted Liens, and (ii) contain by any and all other security agreements, mortgages, or other collateral granted to the information required Agent by Article 9 of the Uniform Commercial Code of each applicable jurisdiction ▇▇▇▇▇▇▇▇ as security for the filing of any financing statement Secured Obligations, now or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 partyfuture.
(d) The Security Interest is granted as security only 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.
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 prompt and complete payment or performance, as the case may be, and performance in full of the principal of, premium, if any, and interest on the Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, purchase, repurchase, redemption or otherwise, and interest on the overdue principal of, premium and interest, if any, to the extent such premium or interest is permitted by law, on the Notes and the performance of all other Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and Subsidiary Guarantor hereby grants to the Collateral Agent, its successors and assigns, for the benefit of itself and the Secured PartiesHolders, a security interest (the “Security Interest”) inin and continuing lien on, all of their right, title or and interest in, to and under the following, in or to any and all of the following assets and properties each case, whether now owned or at any time existing or hereafter acquired by such Grantor or in arising, and wherever located (all of which such Grantor now has or at any time in is defined as the future may acquire any right, title or interest (collectively, the “Article 9 "Collateral”"):
(i) all Accounts;
(ii) subject to the final paragraph of this Section 2.1, all Chattel Paperpresent and future contract rights (including, without limitation, all rights under service contracts pursuant to which each Subsidiary Guarantor renders its services to its customers, which rights shall include any and all rights to all retainers which may arise thereunder), general intangibles (including, but not limited to, tax and duty refunds, patents, trade secrets, trademarks, service marks, copyrights, trade names, trade styles, logos, applications and registrations for the foregoing, goodwill, processes, drawings, blueprints, customer lists, licenses, whether as licensor or licensee, choses in action and other claims), chattel paper, documents, instruments, letters of credit, bankers' acceptances and guaranties;
(iii) all Deposit Accountspresent and future monies, securities, credit balances, deposit accounts and other property of each Subsidiary Guarantor now or hereafter held or received by or in transit to a lender or at any other depository or other institution from or for the account of each Subsidiary Guarantor, whether for safekeeping, pledge, custody, transmission, collection or otherwise, and all present and future liens, security interests, rights, remedies, title and interest in, to and in respect of Accounts and other Collateral, including, without limitation, (a) rights and remedies under or relating to guaranties, contracts of suretyship, letters of credit and credit and other insurance related to the Collateral, (b) rights of stoppage in transit, replevin, repossession, reclamation and other rights and remedies of an unpaid vendor, lienor or secured party, (c) goods described in invoices, documents, contracts or instruments with respect to, or otherwise representing or evidencing, Accounts or other Collateral, including, without limitation, returned, repossessed and reclaimed goods, and (d) deposits by and property of account debtors of other persons securing the obligations of account debtors;
(iv) all Documents (other than title documents relating to vehicles)Inventory;
(v) all Equipment;
(vi) all General Intangibles;Records; and
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above products and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any proceeds of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in any form, including without limitation, insurance proceeds and all claims against third parties for loss or damage to or destruction of any or all of the foregoing. In no event shall the Collateral Agent's security interest granted hereunder attach toin a contract or agreement of each Subsidiary Guarantor be deemed to be a present assignment, nor the terms “Article 9 Collateral” transfer conveyance, subletting or “Pledged Stock” include other disposition (Aan "Assignment") any of such 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 (i) Collateral Agent within the unenforceability meaning of any right of the Grantor therein provision in such contract or (ii) in a breach or termination pursuant to the terms ofagreement prohibiting, or a default underrequiring any consent or establishing any other conditions for, an assignment thereof by each Subsidiary Guarantor. The Collateral Agent acknowledges that any sale, transfer or Assignment of any such contract or agreement (other than upon the enforcement of the Collateral Agent's security interest therein would be subject to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion terms of such contract or agreement that does not result governing Assignment, except as otherwise provided in any Section 9-318 of the consequences specified UCC. The Collateral Agent's security interest in each contract or agreement of each Subsidiary Guarantor shall attach from the date hereof to all of the following, whether now existing or hereafter arising or acquired: (i) all of each Subsidiary Guarantor's Accounts and general intangibles for money due or to become due arising under such contract or agreement; (ii) includingall proceeds paid or payable to each Subsidiary Guarantor from any sale, without limitation, any proceeds transfer or assignment of such contract or agreementagreement and all rights to receive such proceeds; and (iii) all other rights and interests of each Subsidiary Guarantor in, (B) more than 65% of the issued to and outstanding voting Equity Interests of any Foreign Subsidiary under such contract or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant agreement to the organizational documents or any related shareholders or similar agreement fullest extent that attachment thereto would not be a violation of such Person, the grant of such security interest contract or lien is prohibited agreement directly or prohibited without the consent of the equity holders of such Person indirectly entitling a party thereto (other than the Borrower each Subsidiary Guarantor or any wholly-owned Subsidiary Affiliate thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted legally enforceable right to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the terminate such contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedsagreement.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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.
Appears in 2 contracts
Sources: Subsidiary Security Agreement (Discovery Zone Inc), Subsidiary Security Agreement (Discovery Zone 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 of the its Obligations, each Grantor Pledgor other than Holdings (all references to a Pledgor or to the Pledgors in this Article IV shall be deemed to be a reference to each Pledgor other than Holdings) hereby assigns and pledges to the Collateral Agent, Agent and its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, permitted assigns for the benefit of the Secured Parties, a continuing security interest (the “Security Interest”) inin and lien on, all right, title or and interest in or to any and all of the following assets and properties 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 regardless of where located (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rightsall Commercial Tort Claims;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this sectionthe foregoing clauses);
(xiiixii) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xivxiii) to the extent not otherwise included, all Proceeds proceeds, Supporting Obligations and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
. 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) providedany assets (including Equity Interests), that notwithstanding anything herein whether now owned or hereafter acquired, with respect to which the Collateral and Guarantee Requirement or the other paragraphs of Section 6.10 of the Term Credit Agreement would not be required to be satisfied by reason of Section 6.10(g) of the Term Credit Agreement if hereafter acquired, (c) any property excluded from the definition of Pledged Collateral pursuant to Section 3.01, (d) any Letter of Credit Rights to the contraryextent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (Ae) any Pledgor’s right, title or interest in any license, contract or agreement to which a Grantor such Pledgor is a party or any of its rights right, title or interests interest thereunder if and for so long as to the extent, but only to the extent, that such a grant would, under the terms of such security interest shall constitute license, contract or agreement, result in (i) the unenforceability of any right of the Grantor therein or (ii) in a breach or termination pursuant to of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any such license, contract or agreement to which such Pledgor is a party (other than to the extent that any such term would be rendered ineffective pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law (including, without limitation, Title 11 of the United States Code) or principles of equity), ; provided, howeverthat immediately upon the ineffectiveness, that lapse or termination of any such provision, the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest shall attach immediately at in, all such time rights and interests as the condition causing if such unenforceability shall be remedied andprovision had never been in effect, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (iif) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets Equipment owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof Pledgor that are is subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as purchase money lien or a Capital Lease Obligation if the contract or other agreement in which such Lien is granted (or the documentation providing for such IndebtednessCapital Lease Obligation) validly prohibits or requires the consent of any person other than the Pledgors as a condition to the creation of any other Lien security interest on such assets and proceedsEquipment.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (ai) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (bii) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. .
(c) 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 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 as secured party.
(d) The Security Interest is granted as security only 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.9
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Noranda Aluminum Holding CORP), Credit Agreement (Noranda Aluminum Holding CORP)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and Borrower hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, Lender a continuing priority security interest (the “Security Interest”) in, all in and lien upon Borrower's entire right, title or and interest in or and to any and all of the following assets and properties (subject only to the first priority security interest of The CIT Group/Business Credit, Inc.), whether now or hereafter existing or now owned or at any time hereafter acquired by such Grantor acquired, and whether located on the premises of Borrower, a sub-contractor of Borrower or in which such Grantor now has or at any time in elsewhere (the future may acquire any right, title or interest (collectively, the “Article 9 "Collateral”"):
(ia) all Accounts;
accounts, payment intangibles, customer lists, deposit accounts, all contracts together with any contract rights arising thereunder, all documents, all chattel paper, all instruments, all inventory, all goods, all equipment, all general intangibles (ii) including without limitation all Chattel Paper;
(iii) marks, together with registrations and right to all Deposit Accounts;
(iv) all Documents (other than title documents renewals thereof, and the goodwill of the business of Borrowers symbolized by the marks and/or relating to vehicles);
(v) their business generally, all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above patents, patent applications, copyrights and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any copyright applications and all Supporting Obligations software, all computer programs and software of the foregoing Borrower and all collateral security and guarantees given by any Person with respect other proprietary information of Borrower, including but not limited to any of the foregoingtrade secrets;
(b) providedany and all additions, that notwithstanding anything herein improvements and accessions to the contraryforegoing, in no event shall the security interest granted hereunder attach toall substitutions and replacements therefor and all products and proceeds thereof, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, including without limitation, any limitation all proceeds of such contract insurance thereon, all commercial tort and other claims and choses in action, and all books and records, computerized or agreementotherwise, relating thereto; and
(Bc) more than 65% a pledge of all of the issued and outstanding voting Equity Interests shares of any Foreign Subsidiary Konsyl held by Borrower, as reflected more fully in the Pledge Agreement in the form of Exhibit K attached hereto (the "Pledge Agreement"); all to secure performance and payment of the Note, and all other obligations and indebtedness of Borrower to Lender under this Agreement of whatever kind and whenever or any Equity Interests in any Person that is not a wholly-owned Subsidiary wherehowever created or incurred, pursuant to the organizational documents whether absolute or any related shareholders contingent, matured or similar agreement of such Personunmatured, the grant of such direct or indirect. The security interest or lien is prohibited or prohibited without the consent granted herein shall continue in full force and effect until all of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement foregoing have been indefeasibly paid in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedsfull.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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.
Appears in 2 contracts
Sources: Term Loan and Security Agreement (Pharmaceutical Formulations Inc), Term Loan and Security Agreement (Pharmaceutical Formulations Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Administrative Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Administrative Agent, its successors and 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 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) ; provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(46.01(a)(v) of the Indenture Credit Agreement to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(cb) 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 GrantorPledgor, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 Administrative Agent promptly upon request. Each Grantor also ratifies its authorization for the Collateral Administrative Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 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.
(dc) The Security Interest is granted as security only 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 Article 9 Collateral.9
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Ami Celebrity Publications, LLC), Guarantee and Collateral Agreement (Ami Celebrity Publications, LLC)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Secured Obligations, each Grantor hereby assigns and pledges grants to the Collateral Administrative Agent, its successors and assigns, for the benefit and behalf of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, 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 whether now owned by or owing to 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 (collectively, the “Article 9 Filing Collateral”):
(i) the following (collectively, the “Account Collateral”):
(1) all Accountsdeposit accounts, securities accounts, proceeds accounts and all funds and financial assets from time to time credited thereto (including, without limitation, all cash equivalents), and all certificates and instruments, if any, from time to time representing or evidencing any such accounts;
(2) all promissory notes, certificates of deposit, checks and other instruments from time to time delivered to or otherwise possessed by the Administrative Agent for or on behalf of such Grantor in substitution for or in addition to any or all of the then existing Account Collateral; and
(3) all interest, dividends, distributions, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the then existing Account Collateral;
(ii) all Chattel Paperequipment in all of its forms, including, without limitation, all machinery, tools, furniture and fixtures, and all parts thereof and all accessions thereto, including, without limitation, computer programs and supporting information that constitute equipment within the meaning of the UCC (any and all such property being the “Equipment”);
(iii) all Deposit Accountsinventory in all of its forms, including, without limitation, (1) all raw materials, work in process, finished goods and materials used or consumed in the manufacture, production, preparation or shipping thereof, (2) goods in which such Grantor has an interest in mass or a joint or other interest or right of any kind (including, without limitation, goods in which such Grantor has an interest or right as consignee) and (3) goods that are returned to or repossessed or stopped in transit by such Grantor, and all accessions thereto and products thereof and documents therefor, including, without limitation, computer programs and supporting information that constitute inventory within the meaning of the UCC (any and all such property being the “Inventory”);
(iv) all Documents (other than title documents relating to vehicles)Goods;
(v) all EquipmentIntellectual Property (the “IP Collateral”);
(vi) all General Intangiblesinvestment property (including, without limitation, all (A) securities, whether certificated or uncertificated, (B) security entitlements, (C) securities accounts, (D) commodity contracts and (E) commodity accounts) in which such Grantor has now, or acquires from time to time hereafter, any right, title or interest in any manner, and the certificates or instruments, if any, representing or evidencing such investment property, and all dividends, distributions, return of capital, interest, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such investment property and all warrants, rights or options issued thereon or with respect thereto;
(vii) all InstrumentsLetter-of-Credit Rights;
(viii) all InventoryCommercial Tort Claims (as described on Schedule 8 to the Perfection Certificate);
(ix) all Investment Propertyaccounts (including, without limitation, health-care-insurance receivables), chattel paper (including, without limitation, tangible chattel paper and electronic chattel paper), instruments (including, without limitation, promissory notes), deposit accounts, letter-of-credit rights, intercompany loans, general intangibles (including, without limitation, payment intangibles) and other obligations of any kind, whether or not arising out of or in connection with the sale or lease of goods or the rendering of services and whether or not earned by performance, and all rights now or hereafter existing in and to all supporting obligations and in and to all security agreements, mortgages, Liens, leases, letters of credit and other contracts securing or otherwise relating to the foregoing property;
(x) Letter-each of Credit Rightsthe agreements to which such Grantor is now or may hereafter become a party, in each case as such agreements may be amended, amended and restated, supplemented or otherwise modified from time to time, including, without limitation, (i) all rights of such Grantor to receive moneys due and to become due thereunder or pursuant thereto, (ii) all rights of such Grantor to receive proceeds of any insurance, indemnity, warranty or guaranty with respect thereto, (iii) claims of such Grantor for damages arising out of or for breach of or default thereunder and (iv) the right of such Grantor to terminate such agreements, to perform thereunder and to compel performance and otherwise exercise all remedies thereunder;
(xi) Commercial Tort Claims described in Schedule IVall books and records (including, without limitation, customer lists, credit files, printouts and other computer output materials and records) of such Grantor pertaining to any of the Collateral;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);General Intangibles; and
(xiii) all books products, profits and records; and
(xiv) all Proceeds proceeds of, collateral for, income, royalties and products of other payments now or hereafter due and payable with respect to, and supporting obligations relating to, any and all of the Collateral (including, without limitation, proceeds, collateral and Supporting Obligations that constitute property of the foregoing and types described in clauses (i) through (xii) of this Section 3.01(a)) and, to the extent not otherwise included, all collateral security and guarantees given (A) payments under insurance (whether or not the Administrative Agent is the loss payee thereof), or any indemnity, warranty or guaranty, payable by any Person reason of loss or damage to or otherwise with respect to any of the foregoing;
(b) providedforegoing Collateral, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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.cash;
Appears in 1 contract
Sources: Credit Agreement (Blue Bird Corp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of its Secured Obligations, including pursuant to the ObligationsGuaranty, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Administrative Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, in all right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 3 Collateral”):
(i) all debts, accounts, claims and choses in action for monetary amounts which are now or which may hereafter become due, owing or accruing due to the Debtor (collectively, the “Accounts”);
(ii) all Chattel Paperinventory of whatever kind and wherever situated including, without limiting the generality of the foregoing, all goods held for sale or lease or furnished or to be furnished under contracts for service or used or consumed in the business of the Debtor (collectively, the “Inventory”);
(iii) all Deposit Accountsmachinery, equipment, fixtures (but only to the extent such fixtures constitute property in which a security interest may be created under the PPSA or other applicable personal property security legislation), furniture, plant, vehicles and other tangible personal property which are not Inventory;
(iv) all Documents (other than title documents relating to vehicles)chattel paper;
(v) all Equipmentwarehouse receipts, bills of lading and other documents of title, whether negotiable or not;
(vi) all General Intangiblessecurities and other investment property and all instruments;
(vii) all Instrumentsintangibles not otherwise described in paragraph (a) of this Section 3.01 including, without limiting the generality of the foregoing, all goodwill, Patents, Copyrights, Licenses, Trademarks and other Intellectual Property;
(viii) all Inventorycoins or bills or other medium of exchange adopted for use as part of the currency of Canada or of any foreign government;
(ix) all Investment Propertybooks, papers, accounts, invoices, documents and other records in any form evidencing or relating to any of the property described in paragraph (a) of this Section 3.01 and all contracts, securities, instruments and other rights and benefits in respect thereof;
(x) Letter-all replacements of, substitutions for and increases, additions and accessions to any of Credit Rights;the property described in paragraph (a) of this Section 3.01; and
(xi) Commercial Tort Claims described all proceeds of any Article 3 Collateral in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded form derived directly or indirectly from any clause dealing with the Article 3 Collateral or that indemnifies or compensates for the loss of or damage to the Article 3 Collateral; provided that notwithstanding anything to the contrary in this section above and any property specifically excluded from any defined term used Agreement, this Agreement shall not constitute a grant of a security interest in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of Excluded Asset or any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;Excluded Security.
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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 (including fixture filings) with respect to the Article 9 3 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as all assets of such Grantor, whether now owned or hereafter acquired Grantor or words of similar 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 PPSA or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (aA) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, a sufficient description of the real property to which such Article 9 3 Collateral relates. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon any reasonable request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(dc) The Security Interest is granted as security only 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 Article 9 Collateral.3
Appears in 1 contract
Sources: Pledge and Security Agreement (Axcan Intermediate Holdings Inc.)
Security Interest. (a) As Any Collateral Document shall for any reason fail to create a valid and perfected first priority security for the payment or performance, as the case may be, interest in full any material portion of the ObligationsCollateral purported to be covered thereby, each Grantor hereby assigns and pledges to except as permitted by the Collateral Agent, its successors and assigns, for the benefit terms of the Secured Partiesany Loan Document; then, and hereby grants to the Collateral Agent, its successors and assigns, for the 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 now owned or at any time hereafter acquired by every such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents event (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no an event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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 Borrower described in clause (f) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either or any part thereof and amendments thereto that both of the following actions, at the same or different times: (i) indicate terminate the Collateral as all assets of such GrantorCommitments, whether now owned or hereafter acquired or words of similar effect as being of an equal or lesser scope or with greater detailand thereupon the Commitments shall terminate immediately, and (ii) contain declare the information required by Article 9 Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Uniform Commercial Code Loans so declared to be due and payable, together with accrued interest thereon and all fees and other Secured Obligations of each applicable jurisdiction for the filing Borrower accrued hereunder and under the other Loan Documents, shall become due and payable immediately, without presentment, demand, protest or other notice of any financing statement or amendmentkind, including (a) whether such Grantor is an organization, all of which are hereby waived by the type of organization Borrower; and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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 event with respect to or arising out the Borrower described in clause (f) of this Article, the Commitments shall automatically terminate and the principal of the Article 9 CollateralLoans then outstanding, together with accrued interest thereon and all fees and other Secured Obligations accrued hereunder and under the other Loan Documents, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity, including all remedies provided under the UCC.
Appears in 1 contract
Sources: Credit Agreement (TimkenSteel Corp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in), in all right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) all Letter-of of-Credit Rights;
(xi) all Commercial Tort Claims described in Schedule IVClaims;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above books and any property specifically excluded from any defined term used in any clause of this section);records pertaining to the Article 9 Collateral; and
(xiii) all books and records; and
(xiv) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
(b) provided, that notwithstanding . Notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include to (A) 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 (ix) the unenforceability of any right of the Grantor therein or (iiy) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), ; provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in clauses (ix) or (iiy) including, without limitation, any proceeds of such contract or agreement, or (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant Intellectual Property to the organizational documents or any related shareholders or similar agreement of such Person, extent the grant of such a security interest therein by a Grantor would result in the cancellation or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary invalidity thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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 Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets assets” of such Grantor, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detaileffect, 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 (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and and, (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office or any similar office in any other country) such documents as may be necessary or reasonably 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.
(dc) The Security Interest is granted as security only 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.9
Appears in 1 contract
Sources: Guarantee, Collateral and Intercreditor Agreement (Network Communications, Inc.)
Security Interest. (a) As collateral security for the prompt and complete payment or performanceand performance when due of its obligations under the Note and the prompt performance and observance of all the covenants contained therein and in this Agreement, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and Debtor hereby grants to the Collateral Agent, its successors Secured Party a continuing security interest in and assigns, for the benefit lien on all of the Secured PartiesDebtor's right, title and interest in, to and under all of the Debtor's assets (collectively, the "Collateral"), including all accessions to the Collateral, substitutions and replacements thereof, now owned or existing and hereafter acquired, created or arising, and all products and proceeds thereof (including, without limitation, claims of the Debtor against third parties for loss or damage to or destruction of any Collateral), including, without limitation, all of the Debtor's right, title and interest in, to and under, the following:
(a) all equipment in all of its forms, wherever located, now or hereafter existing, including, but not limited to, all fixtures and all parts thereof and all accessions thereto;
(b) all inventory in all of its forms, wherever located, now or hereafter existing, including, but not limited to, (i) all raw materials, work in process and finished products, intended for sale or lease or to be furnished under contracts of service in the ordinary course of business, of every kind and description; (ii) goods in which the Debtor has an interest in mass or a joint or other interest or right of any kind (including, without limitation, goods in which the Debtor has an interest or right as consignee); and (iii) goods which are returned to or repossessed by the Debtor, and all accessions thereto and products thereof and documents (including, without limitation, all warehouse receipts, negotiable documents, bills of lading and other title documents) therefor;
(c) all accounts, contract rights, chattel paper, instruments, letters of credit, deposit accounts, insurance policies, general intangibles (including, without limitation, all pension reversions, tax refunds, and intellectual property) and other obligations of any kind, now or hereafter existing, whether or not arising out of or in connection with the sale or lease of goods or the rendering of services, and all rights now or hereafter existing in and to all security interest agreements, leases, and other contracts securing or otherwise relating to any such accounts, contract rights, chattel paper, instruments, letters of credit, deposit accounts, insurance policies, general intangibles or other obligations;
(the “Security Interest”d) inall original works of authorship fixed in any tangible medium of expression, all mask works fixed in a chip product, all right, title or and interest in or to any therein and thereto, and all of the following assets registrations and properties 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 rightrecordings thereof, title or interest (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, applications, registrations and recordings in the United States Copyright Office or any proceeds of such contract other country or agreementany political subdivision thereof, all whether now or hereafter owned or licensable by the Debtor, and all extensions or renewals thereof;
(Be) more than 65% all letters patent, design and plant patents, utility models, industrial designs, interior certificates and statutory invention registrations of the issued and outstanding voting Equity Interests of any Foreign Subsidiary United States or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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, whether now owned or hereafter acquired or words of similar effect as being of an equal or lesser scope or with greater detailcountry, 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 amendmentall registrations and recordings thereof, including (a) whether such Grantor is an organizationincluding, the type of organization without limitation, applications, registrations and any organizational identification number issued to such Grantor and (b) recordings in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (any other country or any successor office political subdivision thereof, all whether now or any similar office in any other country) such documents as may be necessary hereafter owned or advisable for licensable by the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any GrantorDebtor, and naming any Grantor all reissues, continuations, continuations-in-part, term restorations or the Grantors as debtors and the Collateral Agent as secured party.extensions thereof;
(df) The Security Interest is granted as security only all trademarks, trade names, trade styles, service marks, prints and shall not subject the Collateral Agent or any other Secured Party tolabels on which said trademarks, or in any way alter or modifytrade names, any obligation or liability of any Grantor with respect to or arising out of the Article 9 Collateral.trade styles and service marks have appeared or
Appears in 1 contract
Sources: Purchase and Loan Agreement (Voice Powered Technology International Inc)
Security Interest. (a) As security for the payment or and performance, as the case may be, in full of its obligations and liabilities, including, without limitation, the Transaction Obligations as defined in the S&O Agreement, under the S&O Agreement and the other Transaction Documents (collectively, the “Obligations”), each Grantor the Company hereby assigns grants to Secured Party, and pledges to the Collateral Agent, its permitted successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a continuing security interest (the “Security Interest”) inin and to, and a right of set off against, all right, title or and interest in or to any and all of the following assets and properties now owned or at any time hereafter acquired by such Grantor the Company or in which such Grantor the Company now has or at any time in the future may acquire any right, title or interest (collectively, the “Article 9 Collateral”):
(i) all Accounts;Inventory, including, but not limited to Crude Oil and Products (and all Hydrocarbon Credit Support); and
(ii) all Chattel Paper;
Proceeds of (iii) all Deposit Accounts;
including proceeds of business interruption and other insurance), and Supporting Obligations (iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) including Letter-of of-Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to to, any of the foregoing;
(b. Notwithstanding anything in this Section 2.01(a) provided, that notwithstanding anything herein to the contrary, (1) in no event shall the Collateral include, or the security interest or Lien granted hereunder under this Section 2.01(a) attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include any Excluded Property, and (A2) 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 applicable property continues to be Excluded Property, the Company shall not be required to take any action intended to cause any Excluded Property to constitute or result in (i) the unenforceability of any right Collateral, and none of the Grantor therein covenants or (ii) in a breach or termination pursuant representations and warranties herein shall be deemed to the terms of, or a default under, apply to any such contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), property constituting Excluded Property; provided, however, that such the security interest granted under this Section 2.01(a) shall immediately attach to, and the Collateral shall immediately at include, any such time as asset (or portion thereof) that would otherwise constitute Collateral, were it not Excluded Property, upon such asset (or portion thereof) ceasing to be Excluded Property and (3) any and all assets or property sold, conveyed, transferred, assigned or otherwise disposed of by the condition causing such unenforceability shall be remedied and, Company to the extent severablenot prohibited by the terms of the Transaction Documents shall be free of the security interests granted and created herein upon, from and after such sale, conveyance, transfer, assignment or other disposition, and all rights therein shall attach immediately revert to the Company; provided, further, however, that security interests granted and created herein shall continue in any portion Proceeds of such contract sale, conveyance, transfer, assignment or agreement that does not result in other disposition. Upon any such release or such sale, transfer, conveyance, assignment or other disposition of Collateral or any part thereof, the Secured Party shall, upon the request and at the sole cost and expense of the consequences specified in (i) or (ii) includingCompany, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued execute and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant deliver to the organizational Company such documents or any related shareholders or similar agreement of and instruments reasonably requested by the Company as shall be necessary to evidence such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedstermination.
(cb) Each Grantor The Company hereby irrevocably authorizes the Collateral Agent Secured Party 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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendmentamendment that is necessary or advisable with respect to perfecting the Secured Party’s security interest in the Collateral, including (a) whether such Grantor the Company is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed Company identifying the Collateral as a fixture filing 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 relatescollateral thereon. Each Grantor The Company agrees to provide such information to the Collateral Agent Secured Party promptly upon request. Each Grantor The Company also ratifies its authorization for the Collateral Agent Secured Party to file in any relevant jurisdiction any such initial financing statements or amendments thereto if filed prior to the 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 office 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.
(dc) The Security Interest is granted as security only 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 the Company with respect to or arising out of the Article 9 Collateral.
(d) The Company and Secured Party agree and acknowledge that to the extent one or more schedules to the S&O Agreement are modified, supplemented or changed in anyway, such modification, supplement or change will, as applicable, be deemed to, and will, automatically, be reflected and incorporated in this Agreement.
(e) Anything herein to the contrary notwithstanding, (i) the Company shall remain liable under any contracts, agreements and other documents included in the Collateral, to the extent set forth therein, to perform all of its duties and obligations thereunder to the same extent as if this Agreement had not been executed, (ii) the exercise by Secured Party of any of the rights granted to Secured Party hereunder or under any other Transaction Document shall not release the Company from any of its duties or obligations under any such contracts, agreements and other documents included in the Collateral, and (iii) Secured Party shall not have any obligation or liability under any such contracts, agreements and other documents by reason of this Agreement, nor shall Secured Party be obligated to perform any of the obligations or duties of the Company thereunder or to take any action to collect or enforce any such contract, agreement or other document included in the Collateral hereunder.
(f) The Company agrees that this Agreement shall create a continuing security interest in the Collateral which shall remain in effect until terminated in accordance with Section 4.18.
(g) The Company acknowledges and agrees that Secured Party, the Term Loan Agent, and the Company are parties to the Intercreditor Agreement and that nothing in this Agreement limits Secured Party’s rights under the Intercreditor Agreement.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Administrative Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Administrative Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in), in all right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) all Letter-of of-Credit Rights;
(xi) all Commercial Tort Claims described in Schedule IVset forth on the Perfection Certificate, as the same may be supplemented from time to time;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above books and any property specifically excluded from any defined term used in any clause of this section);records pertaining to the Article 9 Collateral; and
(xiii) all books and records; and
(xiv) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;.
(b) provided, that notwithstanding Notwithstanding anything herein to the contrary, in no event shall the Pledged Collateral or Article 9 Collateral include, and no Grantor shall be deemed to have granted a security interest granted hereunder attach toor under any other Loan Document in, nor the terms “Article 9 Collateral” or “Pledged Stock” include (AI) any General Intangible, Instrument, license, property right, permit or any other 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 (ix) the abandonment, invalidation, voiding or unenforceability of any right right, title or interest of the Grantor therein (including in any Trademark application filed on an intent to use basis until the filing and acceptance of a statement of use), (y) a violation of a valid and enforceable restriction in respect of such General Intangible, Instrument, license, property right, permit or any other contract or agreement or other such rights (1) in favor of a third party or (ii2) in under any law, regulation, permit, order or decree of any Governmental Authority or (z) a breach or termination (or result in any party thereto having the right to terminate) pursuant to the terms of, or a default under, such General Intangible, Instrument, license, property right, permit or any such other contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), ; provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability or breach or termination, as the case may be, shall be remedied and, to the extent severable, shall attach immediately to any portion of such General Intangible, Instrument, license, property right, permit or any other contract or agreement that does not result in any of the consequences specified in the immediately preceding clause (ix), (y) or (iiz) including, without limitation, any proceeds of such General Intangible, Instrument, license, property rights, permit or any other contract or agreement, ; (BII) more than 65% of the issued and outstanding voting Equity Interests in any Foreign Subsidiary, (III) the Equity Interests in any Unrestricted Subsidiary or any Foreign Subsidiary that is not a first tier Foreign Subsidiary, (IV) the Equity Interests of any Foreign Subsidiary or to the extent the grant of any security interest therein would require the approval of any Governmental Authority, (V) Equity Interests in of any Person that is not a other than wholly-owned Subsidiary where, pursuant Subsidiaries of the Loan Parties to the extent not permitted by the terms of such Person’s organizational documents or any related joint venture agreement, shareholders agreement or similar agreement of equivalent document relating to such Person, the grant of such security interest (VI) any vehicle or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are asset subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) certificate of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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.title,
Appears in 1 contract
Security Interest. (a) As Subject to the terms of the Initial Acknowledgment Agreement and the Acknowledgment Agreements (as applicable), the Borrower hereby grants, pledges and assigns to the Administrative Agent (on behalf of and for the ratable benefit of each Secured Party) as security for the payment or performance, as and performance by the case may be, in full Borrower of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (in all of the “Security Interest”) in, all Borrower’s right, title and interest in, to and under, in any case, whether now held or interest in hereafter acquired (i) all F▇▇▇▇▇ M▇▇ MSRs; (ii) all F▇▇▇▇▇▇ Mac MSRs; (iii) all G▇▇▇▇▇ M▇▇ MSRs; (iv) the Borrower’s rights (but not its obligations) under the Transaction Documents including without limitation, any rights to receive payments thereunder or any rights to any collateral thereunder whether now held or hereafter acquired, now existing or hereafter created; (v) all collateral however defined or described under the Transaction Documents to the extent not otherwise included above; (vi) all Related Security; (vii) [reserved]; (viii) all Records relating to and all proceeds of the following assets foregoing (collectively, (i)-(viii), the “MSR Collateral”), and properties 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 (ix) all Additional Collateral (collectively, the “Article 9 Borrower Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, that notwithstanding . Notwithstanding anything herein to the contrary, in no event the term “Borrower Collateral” shall not include, and the grant, pledge and assignment of a security interest granted hereunder attach tocontained in this Section 2.17 shall not include a security interest in any Excluded Collateral.
(b) Additionally, nor the terms “Article 9 Collateral” or “Pledged Stock” include Guarantor hereby grants, pledges and assigns to the Administrative Agent (A) any contract or agreement to which a Grantor is a party or any on behalf of its rights or interests thereunder if and for so long the ratable benefit of each Secured Party) as security for the grant payment and performance by the Borrower of such the Obligations and the Guarantor of the Guaranteed Obligations, a security interest shall constitute or result in (i) the unenforceability of any right all of the Grantor therein Guarantor’s right, title and interest in, to and under, in any case, whether now owned or hereafter acquired, all Additional Guarantor Collateral (ii) in a breach together with the Borrower Collateral, the “Collateral”). For the avoidance of doubt, each grant, pledge, or termination pursuant assignment of the Collateral hereunder shall, subject to the terms ofrights of F▇▇▇▇▇▇ Mac under the Initial F▇▇▇▇▇▇ Mac Acknowledgment Agreement and the F▇▇▇▇▇▇ Mac Acknowledgment Agreement (as applicable), or a default under, any such contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 include all of the New York UCC or any other applicable law or principles of equity)Borrower’s and Guarantor’s rights, providedbut not its obligations, however, that with respect to 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 agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedsCollateral.
(c) The parties acknowledge that the Agencies have certain rights under the Initial Acknowledgment Agreement and Acknowledgment Agreements (as applicable), including the right to cause the Borrower to transfer servicing to a transferee servicer under certain circumstances as more particularly set forth therein. The transferee servicer shall have all the rights and remedies against the Borrower and the Collateral as set forth herein and under the UCC.
(d) [Reserved.]
(e) Each Grantor hereby irrevocably of the Borrower and the Guarantor will promptly, at its respective expense, execute and deliver such instruments, financing and continuation statements and documents and take such other actions as the Administrative Agent may reasonably request from time to time in order to perfect, protect, evidence, exercise and enforce the Administrative Agent’s and each Lender’s interests, rights and remedies under and with respect to the Transaction Documents, the Advances and the Assets. To the extent the Borrower or the Guarantor has filed or caused the filing of any document as provided above, the Borrower or the Guarantor, as applicable, shall deliver to the Administrative Agent file-stamped copies of, or filing receipts for, any document recorded, registered or filed as provided above, as soon as available following such recording, registration or filing.
(f) If the Borrower fails to perform any of its Obligations, then the Administrative Agent may (but shall not be required to) perform or cause to be performed such Obligation, and the costs and expenses incurred by the Administrative Agent in connection therewith shall be payable by the Borrower. Without limiting the generality of the foregoing, if the Borrower fails to perform any of its Obligations, the Borrower authorizes the Collateral Administrative Agent, at the option of the Administrative Agent and the expense of the Borrower, at any time and from time to time time, to take all actions and pay all amounts that the Administrative Agent reasonably deems necessary or appropriate to protect, enforce, preserve, insure, service, administer, manage, perform, maintain, safeguard, collect or realize on the Assets, including the right to liquidate the Assets, and the Administrative Agent’s Liens and interests therein or thereon and to give effect to the intent of the Transaction Documents. No Potential Event of Default or Event of Default shall be cured by the payment or performance of any Obligation by the Administrative Agent on behalf of the Borrower. The Administrative Agent may make any such payment in accordance with any b▇▇▇, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such b▇▇▇, statement or estimate or into the validity of any tax assessment, sale, forfeiture, Tax Lien, title or claim except to the extent such payment is being contested in good faith by the Borrower in appropriate proceedings and against which adequate reserves are being maintained in accordance with GAAP.
(g) Upon termination of this Agreement, Administrative Agent shall release its security interests in the Collateral and promptly file in any relevant jurisdiction any initial financing termination 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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed pursuant to this Section 2.17 and take such other action as a fixture may reasonably be requested by the Borrower or Guarantor to evidence such release. If evidence of filing such termination statements has not been delivered to the Borrower or covering Article 9 Collateral constituting minerals Guarantor, as applicable, within ten (10) days of termination of this Agreement, the Administrative Agent hereby authorizes the Borrower or the like to be extracted or timber to be cutGuarantor, 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 request. Each Grantor also ratifies its authorization for the Collateral Agent as applicable, to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 partytermination statements.
(d) The Security Interest is granted as security only 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.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Secured Obligations, each Grantor hereby pledges, assigns and pledges grants to the Term Collateral Agent, its successors on behalf of and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, in all of its right, title or and interest in or in, to any and under all of the following assets property and properties other assets, whether 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 (collectively, are collectively referred to as the “Article 9 Collateral”):
(ia) all Accounts;
(iib) all Chattel Paper (including Electronic Chattel Paper and Tangible Chattel Paper);
(iiic) all Intellectual Property;
(d) all Documents;
(e) all Equipment;
(f) all Fixtures;
(g) all General Intangibles;
(h) all Goods;
(i) all Instruments;
(j) all Inventory;
(k) all Investment Property;
(l) all Letter-of-Credit Rights and Supporting Obligations;
(m) all Deposit Accounts;
(ivn) [Reserved.];
(o) all Documents Commercial Tort Claims as specified from time to time in Schedule IV hereto (other than title documents relating as the same may be updated from time to vehiclestime in accordance with the terms hereof);
(vp) all Equipmentcash or other property deposited with the Term Collateral Agent or any Secured Party or any Affiliate of the Term Collateral Agent or any Secured Party or which the Term Collateral Agent, for its benefit and for the benefit of the other Secured Parties, or any Secured Party or such Affiliate is entitled to retain or otherwise possess as collateral pursuant to the provisions of this Agreement or the Credit Agreement;
(viq) all General Intangiblesbooks, records, files, correspondence, computer programs, tapes, disks and related data processing software which contain information identifying or pertaining to any of the foregoing 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;
(viir) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) LetterAs-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and recordsExtracted Collateral; and
(xivs) all Proceeds and products of any and all Supporting Obligations 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 any claims against third parties for loss of, damage to or destruction of any or all collateral security and guarantees given by any Person of the Collateral or for proceeds payable under or unearned premiums with respect to any policies of insurance) in whatever form, including cash, negotiable instruments and other instruments for the foregoing;
(b) providedpayment of money, that notwithstanding Chattel Paper, collateral agreements and other documents. Notwithstanding the foregoing or anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” include or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall Security Interest 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 Excluded Collateral or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Excluded Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedsInterests.
(cb) Each Grantor hereby irrevocably authorizes the Term Collateral Agent for the benefit of the Secured Parties at any time and from time to time to file in any relevant U.S. jurisdiction any initial 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 Term 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” of such Grantor, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detaileffect, 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 (a) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 relatesGrantor. Each Grantor agrees to provide such information to the Term Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. The Term Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office or any similar office in any other country) 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 Term Collateral Agent as secured party.
(dc) The Security Interest is and the security interest granted pursuant to Article II are granted as security only and shall not subject the Term 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.
Appears in 1 contract
Sources: Term Collateral Agreement (Installed Building Products, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest (the “"Security Interest”) in"), in all right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “"Article 9 Collateral”"):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all InstrumentsGeneral Intangibles;
(viii) all Instruments;
(ix) all Inventory;
(ixx) all Investment Property;
(xxi) all Letter-of of-Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section)Commercial Tort Claims;
(xiii) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xiv) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
(b) ; provided, however, that notwithstanding anything herein to the contraryArticle 9 Collateral shall not include, and in no event shall the security interest granted hereunder under this Section 4.01 attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include to (A) any contract lease, license, contract, property rights or agreement to which a any Grantor is a party (or to any of its rights or interests thereunder thereunder) if and for so long as the grant of such security interest shall would constitute or result in either (ix) the abandonment, invalidation or unenforceability of any right right, title or interest of the any Grantor therein or (iiy) in a breach or termination pursuant to the terms of, or a default under, any such contract lease, license, contract, property rights or agreement (other than than, in each case, to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or UCC, any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any provision of the consequences specified in (i) Bankruptcy Code or (ii) including, without limitation, any proceeds of such contract or agreementotherwise), (B) more than 65% of the issued any Grantor's directors and outstanding voting Equity Interests of any Foreign Subsidiary officers liability insurance policies, or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor application for registration of a trademark filed with the United States Patent and Trademark Office on an intent-to-use basis until such time (if any) as a statement of use or amendment to allege use is filed, at which time such trademark shall automatically become part of the date hereof or hereafter acquired Collateral and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedssecurity interest pledged.
(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 Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as "all assets assets" of such Grantor, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detaileffect, 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 (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges grants to the Collateral Administrative Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, 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 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 interest, regardless of where located (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles, including all Intellectual Property and Licenses;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Goods, including all Fixtures;
(x) all Investment Property;
(xxi) all Letter-of of-Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above books and any property specifically excluded from any defined term used in any clause of this section)records pertaining to the Article 9 Collateral;
(xiii) all books and recordsCommercial Tort Claims now or hereafter listed on Schedule V; and
(xiv) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all Supporting Obligations, collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, ; provided that notwithstanding anything herein to the contrary, in no event shall the Security Interest attach to any Excluded Asset; provided, however, that Article 9 Collateral shall include any Proceeds, substitutions or replacements of any of the foregoing (unless such Proceeds, substitutions or replacements would independently constitute an Excluded Asset).
(b) In addition, notwithstanding the foregoing provisions of Section 3.01(a), the foregoing grant of a security interest granted hereunder attach shall not extend to, nor and the terms term “Article 9 Collateral” shall not include, FCC Licenses or “Pledged Stock” include State PUC Licenses to the extent (Abut only to the extent) any contract or agreement it is unlawful to which grant 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 therein (i) the unenforceability of any right of the Grantor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such contract or agreement (other than but solely to the extent that any such term would restriction shall be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other enforceable under applicable law or principles of equitylaw), ; provided, however, that such notwithstanding the foregoing or any provision of this Agreement or the Loan Documents to the contrary (including without limitation any provision of “Excluded Assets”), the foregoing grant of a security interest shall attach immediately at extend to, and the Article 9 Collateral shall include: (A) all Proceeds and the right to receive all Proceeds of any FCC License or State PUC License, including those derived or arising from or in connection with the sale, assignment, transfer or transfer of control over 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 FCC Licenses or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, State PUC Licenses; (B) more than 65% of the issued any and outstanding voting Equity Interests all Proceeds of any Foreign Subsidiary FCC Licenses or any Equity Interests in any Person State PUC Licenses that is not a wholly-owned Subsidiary whereare otherwise excluded, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by upon obtaining any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) required consent of the Indenture to the extent and for so long as the contract FCC or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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) a State PUC with respect to any such otherwise excluded FCC Licenses or State PUC Licenses, such FCC Licenses or State PUC Licenses as well as any and all Proceeds thereof that might theretofore have been excluded from such grant of a security interest and from the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as all assets of such Grantor, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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.9
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Telephone & Data Systems Inc /De/)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Guaranteed Obligations, each Grantor Guarantor hereby assigns and pledges to the Collateral Administrative Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Administrative Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest (the ““ Security Interest”) in, in all right, title or and interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash, Deposit AccountsAccounts and securities accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General IntangiblesFixtures;
(vii) all InstrumentsGeneral Intangibles;
(viii) all Instruments;
(ix) all Inventory;
(ixx) all Investment Property;
(xxi) all Letter-of of-Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section)Commercial Tort Claims;
(xiii) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xiv) to the extent not otherwise included, all Proceeds proceeds, supporting obligations and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, that notwithstanding . Notwithstanding anything herein to the contrarycontrary in this Agreement, in no event this Agreement shall the not constitute a grant of a security interest granted hereunder attach to(other than the grant of security interest in the Pledged Stock pursuant to Section 3.01) in, nor the terms and “Article 9 Collateral” or “Pledged Stock” include shall not include, (Aa) any contract or agreement Equity Interests of any Person (except for Equity Interests of any Material Subsidiary listed on Schedule IV hereto as such schedule may be updated from time to which time, that can be perfected upon the filing of a Grantor is a party financing statement), (b) any Material Pledged Debt Securities or any debt securities that may be pledged pursuant to any foreign pledge agreement under the terms of its rights the Credit Agreement, (c) any assets of any Subsidiary to the extent 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 interests thereunder if such Subsidiary, (d) any assets of any Subsidiary acquired after the Closing Date in accordance with the Credit Agreement if, and to 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 grant of such security interest shall constitute or result in (i) the unenforceability of any right time of the Grantor therein acquisition thereof or (iie) in a breach or termination pursuant to the terms of, or a default under, any such contract or agreement (other than United States intent-to-use trademark applications to the extent that any such term would be rendered ineffective pursuant to Sections 9-406that, 9-407, 9-408 or 9-409 of and solely during the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result period in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Personwhich, the grant of such a security interest therein would impair the validity or lien is prohibited or prohibited without enforceability of such intent- to-use trademark applications under applicable federal law; provided, that, upon the consent reasonable request of the equity holders Administrative Agent, Company shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of such Person the types described in clauses (c) and (d) above, other than those set forth in a joint venture agreement to which the Borrower Company or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to is a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedsparty.
(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, whether now owned or hereafter acquired or words of similar 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 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 (ai) whether such Grantor Guarantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Guarantor, (bii) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutFixtures, 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 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.
(dc) The Security Interest is granted as security only 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.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in), in all right, title or interest in or to any and all of the following assets and properties 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 interest, but excluding any Excluded Collateral (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit AccountsDocuments;
(iv) all Documents (other than title documents relating to vehicles)Equipment;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Instruments;
(viiivii) all Inventory;
(ixviii) all Investment Property;
(xix) all Letter-of of-Credit Rights;
(x) all Commercial Tort Claims;
(xi) Commercial Tort Claims described in Schedule IV;all books and records pertaining to the Article 9 Collateral; and
(xii) all other personal property (other than leasehold interests in real property) to the extent not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;.
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detaileffect, 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 (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(dc) The Security Interest is granted as security only and 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 Article 9 Collateral.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Hawkeye Holdings, Inc.)
Security Interest. (a) As collateral security for the prompt and complete payment or performanceand performance when due of its obligations under the Note and the prompt performance and observance of all the covenants contained therein and in this Agreement, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and Debtor hereby grants to the Collateral Agent, its successors Secured Party a continuing security interest in and assigns, for the benefit lien on all of the Secured PartiesDebtor's right, title and interest in, to and under all of the Debtor's assets (collectively, the "Collateral"), including all accessions to the Collateral, substitutions and replacements thereof, now owned or existing and hereafter acquired, created or arising, and all products and proceeds thereof (including, without limitation, claims of the Debtor against third parties for loss or damage to or destruction of any Collateral), including, without limitation, all of the Debtor's right, title and interest in, to and under, the following:
(a) all equipment in all of its forms, wherever located, now or hereafter existing, including, but not limited to, all fixtures and all parts thereof and all accessions thereto;
(b) all inventory in all of its forms, wherever located, now or hereafter existing, including, but not 2 limited to, (i) all raw materials, work in process and finished products, intended for sale or lease or to be furnished under contracts of service in the ordinary course of business, of every kind and description; (ii) goods in which the Debtor has an interest in mass or a joint or other interest or right of any kind (including, without limitation, goods in which the Debtor has an interest or right as consignee); and (iii) goods which are returned to or repossessed by the Debtor, and all accessions thereto and products thereof and documents (including, without limitation, all warehouse receipts, negotiable documents, bills of lading and other title documents) therefor;
(c) all accounts, contract rights, chattel paper, instruments, letters of credit, deposit accounts, insurance policies, general intangibles (including, without limitation, all pension reversions, tax refunds, and intellectual property) and other obligations of any kind, now or hereafter existing, whether or not arising out of or in connection with the sale or lease of goods or the rendering of services, and all rights now or hereafter existing in and to all security interest agreements, leases, and other contracts securing or otherwise relating to any such accounts, contract rights, chattel paper, instruments, letters of credit, deposit accounts, insurance policies, general intangibles or other obligations;
(the “Security Interest”d) inall original works of authorship fixed in any tangible medium of expression, all mask works fixed in a chip product, all right, title and interest therein and thereto, and all registrations and recordings thereof, including, without limitation, applications, registrations and recordings in the United States Copyright Office or interest any other country or any political subdivision thereof, all whether now or hereafter owned or licensable by the Debtor, and all extensions or renewals thereof;
(e) all letters patent, design and plant patents, utility models, industrial designs, interior certificates and statutory invention registrations of the United States or any other country, and all registrations and recordings thereof, including, without limitation, applications, registrations and recordings in the United States Patent and Trademark office or to any other country or any political subdivision thereof, all whether now or hereafter owned or licensable by the Debtor, and all reissues, continuations, continuations-in-part, tern restorations or extensions thereof;
(f) all trademarks, trade names, trade styles, service marks, prints and labels on which said trademarks, trade names, trade styles and service marks have appeared or
(g) all other goods and personal property, whether tangible or intangible, or whether now owned or hereafter acquired and wherever located; and
(h) all proceeds of every kind and nature, including proceeds of proceeds, of any and all of the following assets and properties now owned or at any time hereafter acquired by such Grantor or foregoing Collateral (including, without limitation, proceeds which constitute property of the types described in which such Grantor now has or at any time in clauses (a) through (g) of this paragraph 1) and, to the future may acquire any rightextent not otherwise included, title or interest (collectively, the “Article 9 Collateral”):
all (i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating payments under insurance or any indemnity, warranty or guaranty, payable by reason of loss or damage to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not or otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(c) Each Grantor hereby irrevocably authorizes the foregoing 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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization money and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 partycash.
(d) The Security Interest is granted as security only 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.
Appears in 1 contract
Sources: Security Agreement (Voice Powered Technology International Inc)
Security Interest. (a) As security for the prompt and complete payment or performance, as the case may be, and performance in full of the principal of, premium, if any, and interest on the Notes when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, purchase, repurchase, redemption or otherwise, and interest on the overdue principal of, premium and interest, if any, to the extent such premium or interest is permitted by law, on the Notes and the performance of all other Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and Company hereby grants to the Collateral Agent, for the benefit of itself and the Holders, a security interest in and continuing first priority Lien on, all of its successors right, title and assignsinterest in, to and under the following, in each case, whether now owned or existing or hereafter acquired or arising, and wherever located (all of which is defined as the "First Lien Collateral"):
(i) the Copyrights, Copyright Licenses, Trademarks, Trademark Licenses, and all proprietary rights in and to all products and proceeds therefrom, except the Copyright Licenses and Trademark Licenses listed in Schedule 2.1(a)(i);
(ii) the First Lien Eligible Assets, and all products and proceeds therefrom;
(iii) personal property (other than Second Lien Collateral) and fixtures owned by the Company located at the Company's distribution center in Crawfordsville, Indiana, on the land more particularly described in Exhibit A hereto (the "Distribution Center"), including, but not limited to, any Equipment or Goods, all items listed on Schedule 2.1(a)(iii) and all excess cash proceeds held by the Collateral Agent pursuant to section 1.05 or section 1.13 of the Mortgage, and all products and proceeds therefrom;
(iv) personal property (other than Second Lien Collateral) and fixtures owned by the Company located at the Company's manufacturing facility in Racine, Wisconsin, on the land more particularly described in Exhibit B hereto (the "Manufacturing Facility"), including, but not limited to, any Equipment or Goods and all items listed on Schedule 2.1(a)(iv), and all products and proceeds therefrom; and
(v) personal property (other than Second Lien Collateral) and fixtures owned by the Company located at the Company's and its Parent's headquarters in New York City, on the land more particularly described in Exhibit C hereto (the "Headquarters"), including, but not limited to, any Equipment or Goods and all items listed on Schedule 2.1(a)(v), and all products and proceeds therefrom; PROVIDED that the security interest and continuing first priority Lien granted to the Collateral Agent by the Company with respect to the items of the First Lien Collateral listed in Sections 2.1(a)(ii), (iii), (iv) and (v) hereof, may be subject to Permitted Liens (as defined in the Indenture) other than Eligible Credit Facility Liens.
(b) As further security for the prompt and complete payment and performance in full of the principal of, premium, if any, and interest on the Notes when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, purchase, repurchase, redemption or otherwise, and interest on the overdue principal of, premium and interest, if any, to the extent such premium or interest is permitted by law, on the Notes and the performance of all other Obligations, the Company hereby grants to the Collateral Agent, for the benefit of itself and the Secured PartiesHolders, a security interest in and continuing second priority Lien (the “Security Interest”subject to Permitted Liens) inon, all of its right, title or and interest in, to and under the Second Lien Eligible Assets, in or to any and all of the following assets and properties each case whether now owned or at any time existing or hereafter acquired by such Grantor or in arising, and wherever located (all of which such Grantor now has or at any time in is defined as the future may acquire any right"Second Lien Collateral"); PROVIDED, title or interest (collectivelyhowever, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) any contract or agreement to which a Grantor is a party or any of its rights or interests thereunder if such Lien and for so long as the grant of such security interest in the Second Lien Collateral shall constitute or result be junior in (i) the unenforceability of any right all respects to Eligible Credit Facility Liens of the Grantor therein or Lenders in the Second Lien Collateral securing up to $30.0 million aggregate principal amount of borrowings under the Eligible Credit Facilities and their pro rata share of related interest, default interest, expenses, fees and premiums; (iiB) in a breach or termination pursuant notwithstanding anything to the terms of, or a default under, any such contract or agreement contrary contained in this Security Agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, Article VI hereof), the Indenture or any other Collateral Agreement, until the Eligible Credit Facility Liens are indefeasibly fully satisfied, released or terminated, the Collateral Agent shall be prohibited from taking any action with respect to any such Eligible Credit Facility Liens or Second Lien Collateral, including, without limitation, attempting to foreclose or realize upon or collect the proceeds of any Second Lien Collateral or otherwise exercising any rights and remedies of any kind or nature whatsoever with respect to any such contract Eligible Credit Facility Liens or agreementSecond Lien Collateral, including, without limitation, (BI) more than 65% any right to seek adequate protection in a bankruptcy proceeding of its interests in the issued and outstanding voting Equity Interests Second Lien Collateral prior to similar action by the Lenders, (II) any right with respect to any such Eligible Credit Facility Liens to object to or participate in the manner of liquidating the Second Lien Collateral, or (III) any right with respect to any such Eligible Credit Facility Liens to claim the benefits of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement doctrine of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof)marshaling; and (C) assets owned by any Grantor on if the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) claims of the Indenture to the extent and for so long as the contract Lenders have not been satisfied in all respects, then any proceeds, consideration or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(c) Each Grantor hereby irrevocably authorizes value received by the Collateral Agent at in respect of the aforesaid Second Lien Collateral shall be received in trust for and promptly remitted to the Lenders, except this subparagraph (C) shall not apply with respect to any time proceeds, consideration or other value received or to be received by the Collateral Agent (I) under a confirmed plan of reorganization of the Company or (II) following the consensual release by the Lenders of any such Second Lien Collateral. Nothing in the foregoing shall in any manner alter or abridge the rights and from time remedies of the Collateral Agent with respect to time (x) any other collateral that is pledged to it, (y) the right to file and prosecute a secured or unsecured claim under Section 501 of the United States Bankruptcy Code or similar evidence of indebtedness in any relevant jurisdiction any initial financing statements (including fixture filings) an out-of-court or other proceeding with respect to the Article 9 Collateral debt secured by this Lien or any part thereof and amendments thereto that (i) indicate the Collateral as all assets of such Grantor, whether now owned or hereafter acquired or words of similar effect as being of an equal or lesser scope or with greater detailother debt, and (iiz) 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 (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued right to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies defend its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto interests if filed prior to the 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 office 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 partychallenged.
(d) The Security Interest is granted as security only 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.
Appears in 1 contract
Sources: Security Agreement (Golden Books Family Entertainment Inc)
Security Interest. (a) 4.1. As security for the payment or prompt performance, as the case may be, observance and payment in full of the all Obligations, each Grantor we hereby assigns grant to you a continuing security interest in, a lien upon and pledges to the Collateral Agent, its successors and assigns, for the benefit a right of the Secured Partiessetoff against, and we hereby grants assign, transfer, pledge and set over to you the Collateral Agent, its successors and assigns, for the benefit following (which together with any of the Secured Parties, our other property in which you may at any time have a security interest or lien, whether pursuant to any Supplement, or otherwise, are herein collectively referred to as the "Collateral"): All present and future (a) Accounts; (b) moneys, securities and other property and the “Security Interest”proceeds thereof, now or hereafter held or received by, or in transit to, you from or for us, whether for safekeeping, pledge, custody, transmission, collection or otherwise, and all of our deposits (general or special), balances, sums and credits with you at any time existing; (c) in, all of our right, title or interest in or to any and interest, and all of our rights, remedies, security and liens, in, to and in respect of the following assets Accounts and properties now owned other Collateral, including, without limitation, rights of stoppage in transit, replevin, repossession and reclamation and other rights and remedies of an unpaid vendor, lien or at secured party, guaranties or other contracts of suretyship with respect to the Accounts, deposits or other security for the obligation of any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any Account Debtor, and credit and other insurance; (d) all of our right, title and interest in, to and in respect of all goods relating to, or interest which by sale have resulted in, Accounts including, without limitation, all goods described in invoices, documents, contracts or instruments with respect to, or otherwise representing or evidencing, any Accounts or other Collateral, including, without limitation, all returned, reclaimed or repossessed goods; (collectively, the “Article 9 Collateral”):
(ie) all Accounts;
deposit accounts; (iif) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (books, records, ledger cards, computer programs, and other than title documents property and general intangibles evidencing or relating to vehiclesthe Accounts and any other Collateral or any Account Debtor, together with the file cabinets or containers in which the foregoing are stored ("Records");
; (v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xiig) all other personal property general intangibles of every kind and description, including, without limitation, trade names and trademarks, and the goodwill of the business symbolized thereby, patents, copyrights, licenses and Federal, State and local tax refund claims of all kinds and (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiiih) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any proceeds of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach toany form, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds claims against third parties for loss or damage to or destruction of such contract any or agreement, (B) more than 65% all of the issued foregoing.
4.2. We shall keep and outstanding voting Equity Interests maintain, at our cost and expense, satisfactory and complete books and records of all Accounts, all payments received or credits granted thereon, and all other dealings therewith. At any time on or after the occurrence of an Event of Default, and at such times as you may request, we shall deliver to you all original documents evidencing the sale and delivery of goods or the performance of services which created any Accounts, including but not limited to, all original contracts, orders, invoices, bills of lading, warehouse receipts, delivery tickets and shipping receipts. Any such time as you may request, we shall deliver to you schedules describing the Accounts and/or written confirmatory assignments to you of each Account, in form and substance satisfactory to you and duly executed by us, together with such other information as you may request. You will return to us, at our expense, any original documents evidencing the sale and delivery of goods which created any Accounts delivered to you pursuant to this Section 4.2 and in your possession when your actual or anticipated need therefor has ceased. In no event shall the making or the failure to make or the content of any Foreign Subsidiary schedule or assignment or our failure to comply with the provisions hereof be deemed or construed as a waiver, limitation or modification of your security interest in, lien upon and assignment of the Collateral or our representations, warranties or covenants under this Agreement or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedsSupplement hereto.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in), in all right, title or interest in or to any and all of the following assets and properties 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 interest, but excluding any Excluded Collateral (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit AccountsDocuments;
(iv) all Documents (other than title documents relating to vehicles)Equipment;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Instruments;
(viiivii) all Inventory;
(ixviii) all Investment Property;
(xix) all Letter-of of-Credit Rights;
(x) all Commercial Tort Claims;
(xi) Commercial Tort Claims described in Schedule IV;all books and records pertaining to the Article 9 Collateral; and
(xii) all other personal property (other than leasehold interests in real property) to the extent not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;.
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detaileffect, 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 (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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.and
Appears in 1 contract
Sources: First Lien Credit Agreement (Hawkeye Holdings, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Indenture Obligations, each Grantor hereby collaterally assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Notes Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Notes Secured Parties, a security interest (the “Security Interest”) in, in all right, title or and interest in or in, to and under any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Papercash, Deposit Accounts and Securities Accounts;
(iii) all Deposit AccountsChattel Paper;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all InstrumentsGoods;
(viii) all Instruments;
(ix) all Inventory;
(ixx) all Investment Property;
(xxi) Letter-all Commercial Tort Claims described on Schedule II;
(xii) all Receivables and Receivables Records;
(xiii) all Letter of Credit Rights;
(xixiv) Commercial Tort Claims described all property of such Grantor held by any Notes Secured Party, including all property of every description, in Schedule IVthe custody of or in transit to such Notes Secured Party for any purpose, including safekeeping, collection or pledge, for the account of such Grantor or as to which such Grantor may have any right or power, including but not limited to cash;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiiixv) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xivxvi) to the extent not otherwise included, all Proceeds proceeds and products of any and all Supporting Obligations of the foregoing and all supporting obligations, collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, ; provided that notwithstanding anything herein to the contrarycontrary in this Agreement, in no event this Agreement shall the not constitute a grant of a security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include in (A) any contract or agreement motor vehicles and other assets subject to which a Grantor is a party or any certificates of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreementtitle, (B) Equity Interests of any Subsidiary that is directly or indirectly owned by a CFC, (C) more than 65% of the issued and outstanding voting Equity Interests Voting Stock of each Subsidiary that is a CFC and that is directly held by the Company or by any Foreign Domestic Subsidiary or any of the Company, (D) Equity Interests in any Person that is not a wholly(other than Wholly-owned Subsidiary where, pursuant Owned Subsidiaries) to the organizational documents or any related shareholders or similar agreement extent not permitted to be pledged by the terms of such Person’s organizational or joint venture documents, (E) any asset with respect to which the grant First Priority Agent and the Company reasonably determine that the costs of obtaining such a security interest or lien perfection thereof are excessive in relation to the value of the security to be afforded thereby, (F) assets (including interests in any partnership, joint venture or non Wholly-Owned Subsidiary of the Company) to the extent a pledge thereof or security interest therein is prohibited by applicable Law, regulation or prohibited without agreements in effect on the consent date of this Agreement or the equity holders date of acquisition of such Person asset from a third party and containing enforceable anti-assignment clauses not overridden by the Uniform Commercial Code or other applicable Law, (G) any lease, license or other agreement or any property subject to a purchase money security interest or Capital Lease Obligation or similar arrangement which is permitted under the Indenture Documents to the extent that a grant of a security interest therein would violate or invalidate such lease, license, or agreement, purchase money security interest or Capital Lease Obligation or similar arrangement or create a right of termination in favor of any party thereto (other than a Grantor) after giving effect to the Borrower applicable anti-assignment provisions of the Uniform Commercial Code or other applicable Law, other than proceeds and receivables thereof the assignment of which is expressly deemed effective under applicable Law notwithstanding such prohibition, (H) Equity Interests of any Domestic Subsidiary whose only asset is the Equity Interests of Foreign Subsidiaries, (I) any real property with a fair market value of less than $1,000,000, (J) intercompany Indebtedness owed by any Subsidiary that is a CFC or is directly or indirectly owned by a CFC solely to the extent a pledge thereof could reasonably be expected to result in adverse tax consequences, (K) “intent-to-use” trademark or service ▇▇▇▇ applications or (L) the Equity Interests of any Grantor to the extent that Rule 3-16 of Regulation S-X under the Securities Act requires or would require the filing with the SEC of separate financial statements of such Grantor, which financial statements are not then otherwise required to be filed with the SEC but only to the extent such separate financial statements of such Grantor have not been so filed with the SEC; provided, further, that to the extent that any Grantor grants a Lien on any asset or right described in clauses (A) through (K) to secure any Obligations under the Credit Agreement or any wholly-owned Subsidiary thereofother First Priority Obligations (as it or any similarly defined term is defined in the Intercreditor Agreement); and (C) assets owned , such Lien shall be granted on such asset or right to the Collateral Agent. Each Grantor shall, if requested to do so by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject Collateral Agent, use commercially reasonable efforts to a Lien securing Indebtedness permitted obtain consents in relation to be incurred such of the items otherwise excluded from the Collateral pursuant to Section 4.09(b)(4clause (F) or (G) of the Indenture immediately preceding sentence. Notwithstanding anything to the extent contrary herein, immediately upon the ineffectiveness, lapse or termination of any restriction or condition set forth in this paragraph, the Collateral shall include, and for so long the Company shall be deemed to have granted a security in, all relevant previously restricted or conditioned rights, interests or other assets, as the contract case may be, as if such restriction or other agreement condition had never been in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedseffect.
(cb) Each Grantor hereby irrevocably authorizes the Collateral Agent for the benefit of the Notes Secured Parties 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 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, whether now owned or hereafter acquired acquired” of such Grantor or words of similar effect as being of an equal or lesser scope or with greater detaileffect, 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 (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior with respect to the 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 office 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 part thereof naming any Grantor as debtor or the Grantors as debtors and the Collateral Agent as secured party, if filed prior to the date hereof.
(dc) The Security Interest is granted as security only and shall not subject the Collateral Agent or any other 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 Article 9 Collateral.9
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Collateral Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the 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 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 (collectively, the “"Article 9 Collateral”"):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of of-Credit Rightsrights;
(xi) Commercial Tort Claims described commercial tort claim filed by the Company pursuant to that certain lawsuit filed in Schedule IVthe United States District Court for the Southern District of Texas, Galveston Division, International Wire Group, Inc. vs. National Union Fire Insurance Company of Pittsburgh, PA; AIG Technical Services, Inc; Beirne, Maynard & Parsons, L.L.P., Brit T. Brown and ▇▇▇▇▇▇ ▇. ▇▇▇▇hy, ▇▇▇▇ ▇o. G03-233;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section)books ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇taining to the Article 9 Collateral;
(xiii) all books and records; and
(xiv) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;; and
(bxiv) providedall cash or cash equivalents received by the Trustee or the Collateral Agent on behalf of the Trustee pursuant to Article 12 of the Indenture. Notwithstanding the foregoing, that notwithstanding anything herein "Collateral" shall not include any Grantor's right, title or interest in the cash collateral securing certain letters of credit as described under the section "Use of Proceeds" in the confidential offering circular dated May 29, 2003 with respect to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right initial issuance of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time Notes as the condition causing such unenforceability shall be remedied andwell as, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Personalready included therein, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person cash collateral described in clause (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(411) of the Indenture to definition of the extent and for so long as term "Permitted Liens" in the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedsIndenture.
(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 Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as all assets of such Grantor, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office or any similar office in any other country) such documents as may be necessary or advisable (or, in the reasonable opinion of the Collateral Agent, 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.
(dc) The Security Interest is granted as security only 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.
Appears in 1 contract
Sources: Collateral Agreement (International Wire Group Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges as security to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and 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 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Accounts Receivable;
(iii) all Chattel Paper;
(iiiiv) all Deposit Accounts;
(ivv) all Documents (other than title documents relating to vehicles)Documents;
(vvi) all Equipment;
(vivii) all General Intangibles;
(viiviii) all Instruments;
(viiiix) all Inventory;
(ixx) all Investment Property;
(xxi) Letter-of of-Credit Rights;
(xi) Commercial Tort Claims described in Schedule IVrights;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section)commercial tort claims listed on Schedule VI;
(xiii) all books and recordsrecords pertaining to the Collateral; and
(xiv) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
; provided that the Collateral shall not include (bx) any Excluded Assets or (y) any rights under any item that would, but for this proviso, constitute Collateral, to the extent, but only to the extent, that the terms therof expressly prohibit the pledge, grant of a security interest or lien, transfer, assignment or hypothecation by a Grantor of such item (the “Excluded Collateral”), in each case in the manner contemplated hereby, unless a consent shall have been obtained; provided, further, that notwithstanding anything herein the Collateral shall include all rights to the contraryAccounts and general intangibles for money due or to become due under such Excluded Collateral and all other rights as to which any prohibition on such pledge, in no event shall the grant of a security interest granted hereunder attach toor lien, nor the terms “transfer, assignment or hypothecation in such item is ineffective, whether under Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or otherwise, and shall also include all proceeds of any other applicable law or principles of equity), such Excluded Collateral; and provided, howeverfurther, that such security interest shall attach immediately at such time as the condition causing grant of a security interest in such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not Excluded Collateral would no longer result in any of the consequences specified in (i) forfeiture thereof, or (ii) includingdefault thereunder, without limitation, any proceeds of such contract or agreement, (B) more than 65% of then the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such Collateral Agent’s security interest or lien is prohibited or prohibited therein shall automatically and without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); further action attach and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof become fully effective at that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(c) time. 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 Security Interest or any part thereof and amendments thereto that (i) indicate the Collateral as all assets of such Grantor, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for authorizes the Collateral Agent to file use the collateral description “all personal property” or “all assets” in any relevant jurisdiction any initial such financing statements or amendments thereto if filed prior to the date hereofstatements. The Collateral Agent is further authorized to file with in the United States Patent and Trademark Office or United States Copyright Office (or any successor office 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.
(d) The Security Interest is granted as security only 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.
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 of the its Obligations, each Grantor Pledgor other than Holdings (all references to a Pledgor or to the Pledgors in this Article IV shall be deemed to be a reference to each Pledgor other than Holdings) hereby assigns and pledges to the Collateral Agent, Agent and its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, permitted assigns for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, in all right, title or and interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights[reserved];
(xi) all Commercial Tort Claims described in Schedule IVClaims;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this sectionthe foregoing clauses);
(xiii) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xiv) to the extent not otherwise included, all Proceeds proceeds, Supporting Obligations and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
. 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) providedany assets (including Equity Interests), that notwithstanding anything herein whether now owned or hereafter acquired, with respect to which the Collateral and Guarantee Requirement or the other paragraphs of Section 5.10 of the Credit Agreement would not be required to be satisfied by reason of Section 5.10(g) of the Credit Agreement if hereafter acquired, (c) any property excluded from the definition of Pledged Collateral pursuant to Section 3.01 hereof, (d) any Letter of Credit Rights to the contraryextent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (Ae) any Pledgor’s right, title or interest in any license, contract or agreement to which a Grantor such Pledgor is a party or any of its rights right, title or interests interest thereunder if and for so long as to the extent, but only to the extent, that such a grant would, under the terms of such security interest shall constitute license, contract or agreement, result in (i) the unenforceability of any right of the Grantor therein or (ii) in a breach or termination pursuant to of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any such license, contract or agreement to which such Pledgor is a party (other than to the extent that any such term would be rendered ineffective pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law (including, without limitation, Title 11 of the United States Code) or principles of equity), ; provided, howeverthat immediately upon the ineffectiveness, that lapse or termination of any such provision, the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest shall attach immediately at in, all such time rights and interests as the condition causing if such unenforceability shall be remedied andprovision had never been in effect, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (iif) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets Equipment owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof Pledgor that are is subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as purchase money lien or a Capital Lease Obligation if the contract or other agreement in which such Lien is granted (or the documentation providing for such IndebtednessCapital Lease Obligation) validly prohibits or requires the consent of any person other than the Pledgors as a condition to the creation of any other Lien security interest on such assets and proceedsEquipment.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (ai) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (bii) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 as secured party.
(dc) The Security Interest is granted as security only 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.9
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Noranda Aluminum Acquisition CORP)
Security Interest. (a) As security for the payment or performanceperformance when due, as the case may be, in full of the Obligations, each Grantor Pledgor hereby assigns and 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, in all right, title or and interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Intellectual Property;
(ix) all Inventory;
(ixx) all Investment Property;
(xxi) Letter-all Letter of Credit Rights;
(xixii) all Commercial Tort Claims as described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section)II;
(xiii) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xiv) to the extent not otherwise included, all Proceeds proceeds, Supporting Obligations and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;.
(a) any vehicle, (b) providedany Excluded Assets, that notwithstanding anything herein (c) any assets owned on or acquired after the Issue Date, to the contraryextent that, in no event shall the and for long as, granting a security interest granted hereunder attach toin such assets would violate applicable law or a contractual obligation binding on such assets that existed at the time of the acquisition thereof and was not created or made binding on such assets in contemplation of or in connection with the acquisition of such assets (except in the cash or assets owned on the Issue Date or acquired with Indebtedness of the type incurred pursuant to Section 4.03(iv) of the Indenture), nor the terms “Article 9 Collateral” or “Pledged Stock” include (Ad) 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 Equity Interests or debt securities excluded from the pledge made pursuant to Section 3.01 hereof, (f) any Pledgor’s right, title or interest in any license, contract or agreement to which a Grantor such Pledgor is a party or any of its rights right, title or interests interest thereunder if and for so long as to the extent, but only to the extent, that such a grant would, under the terms of such security interest shall constitute license, contract or agreement, result in (i) the unenforceability of any right of the Grantor therein or (ii) in a breach or termination pursuant to of the terms of, or constitute a default under, any such or result in the abandonment, invalidation or unenforceability of, that license, contract or agreement to which such Pledgor is a party (other than to the extent that any such term would be rendered ineffective pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law (including, without limitation, Title 11 of the United States Code) or principles of equity); provided that immediately upon the ineffectiveness, providedlapse or termination of any such provision, howeverthe Collateral shall include, that and such Pledgor shall be deemed to have granted a security interest shall attach immediately at in, all such time rights and interests as the condition causing if such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result provision had never been in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreementeffect, (Bg) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary Equipment or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets asset owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof Pledgor that are is subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as purchase money lien or a Capitalized Lease Obligation if the contract or other agreement in which such Lien is granted (or the documentation providing for such IndebtednessCapitalized Lease Obligation) validly prohibits or requires the consent of any person other than the Pledgors as a condition to the creation of any other Lien security interest on such Equipment or assets (h) any intent-to-use United States trademark applications for which an amendment to alleged use or statement of use has not been filed under 15 U.S.C. § 1051(c) or 15 U.S.C. § 1051(d), respectively, or, if filed, has not been deemed in conformance with 15 U.S.C. § 1051(a) or examined and accepted by the United States Patent and Trademark Office, (i) any assets that are not required to be pledged to secure Senior Lender Claims, (j) any real estate held by any Pledgor, (k) any Principal Property; provided that after the Existing Debenture Payoff Date, to the extent Liens on such assets are granted to secure outstanding First Priority Lien Obligations, the Collateral shall include, and proceedssuch Pledgor shall be deemed to have granted a security interest in, all such rights and interests in such Principal Property as for so long as such assets continue to secure outstanding First Priority Lien Obligations, (l) any assets which, if included in the Collateral, would require the Existing Debentures to be ratably secured with the Obligations pursuant to the terms of the indentures for the Existing Debentures or (m) solely with respect to any series of Other Pari Passu Lien Obligations, any asset that is not intended to be collateral with respect to such series pursuant to the terms of the Other Pari Passu Lien Agreement governing such series. In addition, notwithstanding anything to the contrary, the requirements of this Agreement are subject to the terms of Section 4.14 of the Indenture.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (ai) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (bii) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office or any similar office in any other countryoffice) 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.
(dc) The Security Interest is granted as security only 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.9
Appears in 1 contract
Sources: Collateral Agreement (Hexion 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 of the its Obligations, each Grantor Pledgor, other than Holdings (all references to a Pledgor or to the Pledgors in the Article IV shall be deemed to be a reference to each Pledgor other than Holdings) hereby assigns and pledges to the Collateral Administrative Agent, its successors and permitted assigns, for the ratable benefit of the Secured Parties, and hereby 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, in all right, title or and interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all InventoryInventory and all other Goods not otherwise described above;
(ix) all Investment Property;
(x) Letter-all Letter of Credit Rights;
(xi) all Commercial Tort Claims described in Schedule IVClaims;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this sectionthe foregoing clauses);
(xiii) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xiv) to the extent not otherwise included, all Proceeds proceeds, Supporting Obligations and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
. 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) providedany assets (including Equity Interests), that notwithstanding anything herein whether now owned or hereafter acquired, with respect to which the Collateral and Guarantee Requirement or the other paragraphs of Section 5.10 of the Credit Agreement would not be required to be satisfied by reason of Section 5.10(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 contraryextent any Pledgor, in no event shall is required by applicable law to apply the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include proceeds of a drawing of such Letter of Credit for a specified purpose (Ae) any Pledgor’s right, title or interest in any license, contract or agreement to which a Grantor such Pledgor is a party or any of its rights right, title or interests interest thereunder if and for so long as to the extent, but only to the extent, that such a grant would, under the terms of such security interest shall constitute license, contract or agreement, result in (i) the unenforceability of any right of the Grantor therein or (ii) in a breach or termination pursuant to of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any such license, contract or agreement to which such Pledgor is a party (other than to the extent that any such term would be rendered ineffective pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law (including, without limitation, Title 11 of the United States Code) or principles of equity), ; provided, howeverthat immediately upon the ineffectiveness, that lapse or termination of any such provision, the Collateral shall include, and such Grantor shall be deemed to have granted a security interest shall attach immediately at in, all such time rights and interests as the condition causing if such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result provision had never been in any of the consequences specified in (i) effect or (iif) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets Equipment owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof Pledgor that are is subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as purchase money lien or a Capital Lease Obligation if the contract or other agreement in which such Lien is granted (or the documentation providing for such IndebtednessCapital Lease Obligation) validly prohibits or requires the consent of any person other than the Pledgors as a condition to the creation of any other Lien security interest on such assets and proceedsEquipment.
(cb) Each Grantor Pledgor, hereby irrevocably authorizes the Collateral Administrative Agent at any time and from time to time to file in any relevant jurisdiction any initial financing statements (including fixture filings) with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as all assets of such Grantor, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (ai) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (bii) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, a sufficient description of the real property to which such Article 9 Collateral relatesrelates and (iii) a description of collateral that describes such property in any other manner as the Administrative Agent may reasonably determine is necessary or advisable to ensure the perfection of the security interest in the Article 9 Collateral granted under this Agreement, including describing such property as “all assets” or “all property”. Each Grantor Pledgor, agrees to provide such information to the Collateral Administrative Agent promptly upon request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 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 Administrative Agent as secured party.
(dc) The Security Interest is granted as security only and shall not subject the Collateral Administrative Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any Grantor Pledgor with respect to or arising out of the Article 9 Collateral.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Berry Plastics Holding Corp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and 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 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) all Letter-of of-Credit Rights;
(xi) all Commercial Tort Claims described in Schedule IVClaims;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section)Fixtures;
(xiii) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xiv) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided. Notwithstanding the foregoing, that notwithstanding anything herein to the contrary, Article 9 Collateral shall not include any of the following assets now owned or hereafter acquired which would otherwise be included in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include : (Aa) any contract or agreement assets transferred 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary whereGrantor, pursuant and is not required under the Credit Agreement to become a Grantor, in compliance with the organizational documents or any related shareholders or similar agreement of such PersonCredit Agreement, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (Cb) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness Liens permitted to be incurred pursuant to by Section 4.09(b)(46.05(ii)(2), (3) or (4), 6.05(iv) or 6.05(v) of the Indenture Credit Agreement to the extent the documentation creating such Liens or governing the Indebtedness secured thereby would prohibit Liens on such assets created hereunder, (c) any asset consisting of rights under a contract, agreement, instrument or other document, that contains a valid and enforceable prohibition on the creation of a security interest therein, to the extent and for so long as the contract or other agreement such prohibition remains in which such Lien effect and is granted (or the documentation providing for such Indebtedness) validly prohibits valid and effective to prohibit the creation of a security interest therein notwithstanding Sections 9-406 through 9-409 of the applicable Uniform Commercial Code, (d) Vehicles, (e) aircraft, (f) real estate interests (including but not limited to leasehold interests), other than Fixtures, (g) Equity Interests expressly excluded by the proviso to Section 2.01(a), (h) Equity Interests issued by Subsidiaries that are not Material Subsidiaries and that are excluded from the Pledged Collateral, (i) rights created under foreign registrations and applications with respect to Intellectual Property, (j) Excluded Cash and (k) any other Lien application for registration of a Trademark filed with the United States Patent and Trademark Office on an intent to use basis until such assets time (if any) as a statement of use or an amendment to allege use is filed, at which time such Trademark shall automatically become part of the Collateral and proceedssubject to the Security Interest (collectively, the “Excluded Collateral”).
(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 and Transmitting Utility 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 GrantorGrantor (or, whether now owned or hereafter acquired if the Collateral Agent shall so elect, identifying the Collateral in greater detail) or words of similar effect as (it being understood that such description shall not result in the creation of an equal or lesser scope or with greater detaila security interest in any assets expressly excluded from the Article 9 Collateral by the immediately preceding paragraph), 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 (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide such information information, other than real property descriptions, to the Collateral Agent promptly upon request. Notwithstanding the foregoing, it is understood that no Grantor shall have any obligation to provide a real property description for central fixture filings or local fixture filings. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office or any similar office in any other countryoffice) 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.
(dc) The Security Interest is granted as security only 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.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and 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), in all right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit AccountsDocuments;
(iv) all Documents (other than title documents relating to vehicles)Equipment;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Instruments;
(viiivii) all Inventory;
(ixviii) all Investment Property;
(xix) all Letter-of of-Credit Rights;
(x) all Commercial Tort Claims;
(xi) Commercial Tort Claims described in Schedule IV;all books and records pertaining to the Article 9 Collateral; and
(xii) all other personal property (other than leasehold interests in real property) to the extent not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
(b) provided, that notwithstanding . Notwithstanding anything herein to the contrary, in no event shall the Collateral include, and no Grantor shall be deemed to have granted a security interest granted hereunder attach toin any:
(I) General Intangible, nor the terms “Article 9 Collateral” Instrument, license, property right, permit or “Pledged Stock” include (A) any other 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 (ix) the abandonment, invalidation or unenforceability of any right right, title or interest of the Grantor therein therein, (y) a violation of a valid and enforceable restriction in respect of such General Intangible, Instrument, license, property right, permit or any other contract or agreement or other such rights (1) in favor of a third party or (ii2) in under any law, regulation, permit, order or decree of any Governmental Authority or (z) a breach or termination (or result in any party thereto having the right to terminate) pursuant to the terms of, or a default under, such General Intangible, Instrument, license, property right, permit or any such other contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), ; provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability or breach or termination, as the case may be, shall be remedied and, to the extent severable, shall attach immediately to any portion of such General Intangible, Instrument, license, property right, permit or any other contract or agreement that does not result in any of the consequences specified in the immediately preceding clause (ix), (y) or (iiz) including, without limitation, any proceeds of such General Intangible, Instrument, license, property rights, permit or any other contract or agreement, ;
(BII) more than 65% of the issued and outstanding voting Equity Interests of in any Foreign Subsidiary;
(III) any Equity Interest in any Non-Significant Subsidiary;
(IV) any Equity Interest in any Permitted Syndication Subsidiary, any Securitization Subsidiary or any Equity Interests in any Person that is not a wholly-owned Permitted Joint Venture Subsidiary where, pursuant to the organizational documents extent the pledge of the Equity Interest in such Subsidiary is prohibited by any applicable Contractual Obligation or requirement of law;
(V) any related shareholders vehicle or similar agreement other asset subject to certificate of such Persontitle;
(VI) any asset that requires perfection through control agreements (including, to the grant extent required in the relevant jurisdiction for deposit accounts and investment property);
(VII) any minority Equity Interests;
(VIII) any assets with respect to which the Collateral Agent shall reasonably determine that the cost of such creating and/or perfecting a security interest therein is excessive in relation to the benefit to the Secured Parties or lien is prohibited that the granting or prohibited without the consent perfection of the equity holders of such Person a security interest therein would violate applicable law or regulation;
(IX) any assets (other than the Borrower any General Intangible, Instrument, license, property right, permit or any wholly-owned Subsidiary thereof); and (Cother contract or agreement) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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.:
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Community Health Systems Inc)
Security Interest. (a) As security for the payment or performanceAssignor hereby pledges, as the case may be, in full of the Obligations, each Grantor hereby transfers and assigns and pledges to the Collateral Agent, its successors Lender a first and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a superior security interest (the “"Security Interest”") inin the following described items, and all interest received thereon, all renewals, replacements, and substitutions therefor and in all proceeds thereof in any form (the "Collateral"):
(a) all of Assignor’s right, title and interest in, to, and under the Assignor’s rights as the sole member of the Project Companies, whether now or hereafter existing, or now or hereafter acquired (the “Any Project Company Membership Interests”), including but not by way of limitation, (i) its interest in the income, all distributions, repayment of capital contributions, deductions, losses, and tax benefits (including any tax credits allocated or available to the Assignor), (ii) its interest with respect to any and all of the following assets and properties now owned loans made by any Project Company to any person 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 rightentity, title or interest (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
any other sums, payments, fees or other amounts to which Assignor may be entitled from any Project Company as the sole member thereof, (iv) all Documents that certain Operating Agreement of each Project Company as now existing, to be entered into, as it may be amended, supplemented, and/or restated from time to time (other than title documents relating to vehicleseach a “Project Company Operating Agreement”);
, (v) all Equipment;
voting rights of the Assignor under each Project Company Operating Agreement, as it may be amended, supplemented, and/or restated from time to time, and (vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect records pertaining to any of the foregoing;above described property, including, but not limited to, any computer readable memory and any computer hardware or software.
(b) providedall of Assignor’s right, that notwithstanding anything herein to the contrarytitle and interest in, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) any contract or agreement to which a Grantor is a party or any of its rights or interests thereunder and under, if and for so long as the grant of such security interest shall constitute or result in (i) the unenforceability of any right any, each of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued agreements and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor listed on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedsExhibit C hereto.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time all of Assignor’s right, title 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 Grantorinterest in, whether now owned or hereafter acquired or words of similar effect as being of an equal or lesser scope or with greater detailto, and (ii) contain the information required under, if any, any contracts, permits, applications or other documents or agreements entered into or submitted by Article 9 any of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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.Project Companies,
Appears in 1 contract
Sources: Collateral Assignment and Pledge Agreement (Coronus Solar Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Secured Obligations, including the Guaranty, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the 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 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit AccountsDocuments;
(iv) all Documents (other than title documents relating to vehicles)Equipment;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Instruments;
(vii) all books and records pertaining to the Article 9 Collateral;
(viii) all Goods and Fixtures;
(ix) all Money and Deposit Accounts;
(x) all Commercial Tort Claims described on Schedule IV from time to time;
(xi) the Collateral Account, and all cash, securities and other investments deposited therein;
(xii) all Supporting Obligations;
(xiii) all Security Entitlements in any or all of the foregoing and all Securities Accounts;
(xiv) all Intellectual Property Collateral;
(xv) all Inventory;
(ixxvi) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xivxvii) to the extent not otherwise included, all Books and Records and all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, ; provided that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) this Agreement shall not constitute a grant of security interest in any trademark application filed in the unenforceability United States Patent and Trademark Office on the basis of any right Grantor’s “intent to use” such ▇▇▇▇ and for which a form evidencing use of the Grantor therein or (ii) in a breach or termination pursuant to ▇▇▇▇ has not yet been filed with the terms ofUnited States Patent and Trademark Office, or a default under, any such contract or agreement (other than to the extent that any granting a security interest in such term trademark application prior to such filing would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 adversely affect the enforceability or 9-409 validity of the New York UCC such trademark application or any other registration that issues therefrom under applicable federal law or principles and (ii) notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of equity), provided, however, that such a security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, in (A) motor vehicles and other assets subject to certificates of title except to the extent severable, shall attach immediately to any portion perfection of such contract or agreement that does not result a security interest therein may be accomplished by filing of financing statements in any of appropriate form in the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreementapplicable jurisdiction under the UCC, (B) more commercial tort claims in amounts less than 65% of $10,000,000, (C) the issued and outstanding voting Excluded Equity Interests of Interests, (D) any property or assets owned by any Foreign Subsidiary or an Unrestricted Subsidiary, (E) any Equity Interests Excluded Equipment; (F) any Excluded Contract, (G) Excluded Accounts, (H) Letter of Credit Rights, other than Letter of Credit Rights that are Supporting Obligations, (I) assets as reasonably determined by the Company to the extent obtaining a security interest in such assets or perfection thereof would result in costs or consequences (including as a result of Section 956 of the Code or any similar law, rule or regulation in any Person applicable jurisdiction) that are excessive in relation to the value to the Holders of the security to be afforded thereby, (J) Accounts of Account Debtor subject to Factoring Agreements and (I) proceeds and products from any and all of the foregoing excluded assets described in clauses (i) and (ii)(A) through (J), unless such proceeds or products would otherwise constitute Collateral (the items referred to in clauses (i) and (ii), being collectively referred to as the “Excluded Assets”). Each Grantor shall, if requested to do so by the Collateral Agent, use commercially reasonable efforts to obtain any such required consent referred to above that is not a wholly-owned Subsidiary wherereasonably obtainable with respect to Collateral which the Collateral Agent reasonably determines to be material. In addition, pursuant no Grantor shall be required (i) to the organizational documents take actions to perfect security interests in commercial tort claims in amounts less than $10,000,000 or any related shareholders or similar agreement Letter of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person Credit Rights (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) Letter of the Indenture Credit Rights to the extent perfection of a security interest therein may be accomplished by filing of financing statements in appropriate form in the applicable jurisdiction under the UCC), (ii) to take actions to perfect by Control other than with respect to the Pledged Collateral and for so long as set forth clause (e) below or (iii) take any actions under any laws outside of the contract United States to grant, perfect or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of enforce any other Lien on such assets and proceedssecurity interest.
(cb) 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) 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, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detail, and (ii) contain the information required by Article 9 of the Uniform Commercial Code UCC or the analogous legislation of each applicable jurisdiction for the filing of any financing statement or amendment, including (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, a sufficient description of the real property to which such Article 9 Collateral relates. Each Grantor agrees to provide copies of such information financing statements to the Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 partyfiling.
(dc) The Security Interest is granted as security only 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.9
Appears in 1 contract
Sources: Security Agreement (Dominion Textile (Usa), L.L.C.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”"SECURITY INTEREST") in, in all right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “Article "ARTICLE 9 Collateral”COLLATERAL"):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-Letter of Credit Rightsrights;
(xi) Commercial Tort Claims described in all commercial tort claims against any Grantor (as identified on Schedule IVIV hereto);
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above books and any property specifically excluded from any defined term used in any clause of this section);records pertaining to the Article 9 Collateral; and
(xiii) all books and records; and
(xiv) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;; PROVIDED, HOWEVER, that notwithstanding any of the other provisions in this Article IV, this Agreement shall not constitute a grant of security interest in (and the term "Collateral" shall not include) any "Collateral" as such term is defined in Section 16 of the Mortgage and Security Agreement dated as of March 5, 2004 (as amended, supplemented or otherwise modified as of the date hereof), between Services and Citizens Bank of Massachusetts ("CITIZENS") granted in connection with the Loan Agreement dated as of March 5, 2004 (as amended, supplemented or otherwise modified as of the date hereof), between Services and Citizens.
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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, whether now owned or hereafter acquired or words of similar effect as being of an equal or lesser scope or with greater detailPledgor, 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 (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. The Collateral Agent hereby agrees that it shall not file any "fixture filings" and the Grantors shall have no obligation to provide information required for any "fixture filings" except in respect of any fixtures associated with any Mortgaged Property. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(dc) The Security Interest is granted as security only 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.
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 of the ObligationsObligations of the Credit Parties, each Grantor Credit Party hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, in all right, title or and interest in or in, to and under any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash, cash equivalents and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General IntangiblesGoods;
(vii) all InstrumentsGeneral Intangibles;
(viii) all InventoryInstruments (including the Pledged Debt Securities);
(ix) all Investment PropertyInventory;
(x) Letter-all Investment Property (including the Pledged Equity Interests);
(xi) all Letters of Credit and Letter of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section)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 books and recordsRecords pertaining to the Article 9 Collateral; and
(xivxvi) all Proceeds Proceeds, Supporting Obligations and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
. 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) providedany Excluded Equity Interests, that notwithstanding anything herein (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 contrary, in no event shall the extent constituting a support obligation for other Collateral as to which perfection of a security interest granted hereunder attach totherein can be perfected by the filing of Uniform Commercial Code (or similar filing in any applicable jurisdiction), nor and to the terms “Article 9 Collateral” or “Pledged Stock” include 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, (Ad) any contract Credit Party’s right, title or interest in any lease, license or agreement or any property subject to a purchase money security interest, Capital Lease Obligation or similar arrangements to which a Grantor such Credit Party is a party or any of its rights right, title or interests thereunder if interest thereunder, the property subject thereto, any insurance in respect thereof, any management or operating agreement with respect thereto and for so long as deposits made in respect thereof and all rights, title or interest in relation to any of the foregoing, in each case, to the extent that such a grant would, under the terms of such security interest shall constitute lease, license or agreement, purchase money, capital lease or similar arrangement result in (i) the unenforceability of any right of the Grantor therein or (ii) in a breach or termination pursuant to 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 other party (in each case, other than a Credit Party) to, such contract lease, license or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds Title 11 of such contract or agreementthe United States Code)), (Be) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not (i) all owned real property interests with a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person fair market value (other than as reasonably determined by the Borrower in good faith) equal to or any wholly-owned Subsidiary thereof)less than $7,500,000; and (Cii) all leasehold interests (it is understood that there shall be no requirement to obtain landlord waivers, estoppels or collateral access agreements or acknowledgements, bailee waivers and similar letters), (f)(i) payroll, healthcare and other employee wage and benefit accounts, (ii) tax accounts, including, without limitation, sales tax accounts, (iii) escrow, defeasance, discharge and redemption accounts, (iv) fiduciary or other trust accounts, and, in the case of clauses (i) through (iv), the funds or other property held in or maintained in such account, (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 state thereof, and (vii) accounts other than those described in the preceding clauses with respect to which the average daily balance of the funds maintained on deposit therein does not exceed $5,000,000 (such accounts in this clause (f) being the “Excluded Accounts”) (g) any Commercial Tort Claim with an expected value not in excess of $5,000,000, as determined in good faith by the Borrower, (h) the Borrower’s or its subsidiaries’ rights in relation to aircraft and airframes, including rights under any lease, sublease, charter, management, operating, crew, service, repair, maintenance, storage or other agreement relating to the aircraft, rights in the aircraft and any parts, accessions and accessories thereto, rights under insurance policies and security deposits and rights in income derived from and proceeds of any of the foregoing, in the ordinary course, (i) assets owned if the granting of a security interest therein would result in material adverse tax consequences to any Credit Party as reasonably determined by the Borrower, (j) those assets as to which the Collateral Agent and the Borrower reasonably determine in good faith that any Grantor on of the date hereof cost, burden or hereafter acquired and any proceeds thereof that are subject consequences (including adverse tax consequences) of obtaining or perfecting such a security interest in such assets is excessive in relation to a Lien securing Indebtedness permitted the practical benefit to the Secured Parties of the security to be incurred afforded thereby, (k) foreign intellectual property, (l) any United States “intent to use” trademark application or intent-to-use service ▇▇▇▇ application filed pursuant to Section 4.09(b)(41(b) of the Indenture ▇▇▇▇▇▇ Act, to the extent and for so long 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 ▇▇▇▇ registration that issues as a result of such application under applicable federal law (including prior to the contract filing 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-wholly owned entities) in respect of which and to the extent that pledges and security interests are prohibited by law or prohibited by agreements containing anti-assignment clauses not overridden by the New York UCC or other agreement in which applicable law and (o) any assets and proceeds thereof subject to a Capital Lease Obligation or a purchase money lien permitted by Section 6.2(ll) of the Credit Agreement to the extent such Lien is granted (a grant would violate or invalidate the documentation documents providing for such IndebtednessCapital Lease Obligation or purchase money lien (the assets described in clauses (a) validly prohibits through (o) above, collectively, the creation “Excluded Assets”); provided that such exclusions shall not de facto apply to the proceeds of any other Lien on such assets of the property referred to in the foregoing clauses (d), (k) and proceeds(n) of this Section 3.01 or in clauses (A) to and 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 initial 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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (ai) whether such Grantor Credit Party is an organization, the type of organization and any organizational identification number issued to such Grantor and Credit Party, (bii) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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.of
Appears in 1 contract
Security Interest. (a) As security for the prompt and complete payment when due (whether on the payment dates or performance, as otherwise) of all the case may be, in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and Borrower hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, Agent a security interest (the “Security Interest”) in all of Borrower’s right, title, and interest in, all right, title or interest in or to any and under all of the following assets and properties Borrower’s personal property now owned or at any time hereafter acquired, and other assets including without limitation the following (except as set forth herein) whether now owned 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 (collectively, the “Article 9 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) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (Goods and other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) 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 (other than leasehold interests in real propertyj) to the extent not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) included, all Proceeds and products of any and all Supporting Obligations each of the foregoing and all collateral security accessions to, substitutions and guarantees given by any Person with respect to any replacements for, and rents, profits and products of each of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), ; provided, however, that such security interest the Collateral 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 agreement that does not result in any of the consequences specified in (i) 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”) and (ii) including, without limitation, any proceeds of such contract or agreement, not include (BA) more than 65% of the issued and outstanding voting Equity Interests capital stock of any Foreign Subsidiary that is incorporated or organized in a jurisdiction other than the United States or any Equity Interests in state or territory thereof or the District of Columbia; (B) Intellectual Property (other than Rights to Payment); (C) any Person Equipment or Proceeds thereof that is not subject to a whollyLien that is otherwise permitted by clause (vii) of the definition of “Permitted Lien” hereunder if inclusion of such Equipment would constitute a breach by Borrower of its agreement with a third-owned Subsidiary whereparty equipment lessor or lender, pursuant provided, that upon the release of any such Lien such Equipment shall be deemed to be Collateral hereunder and shall be subject to the organizational documents or any related shareholders or similar agreement security interest granted herein; and (D) 100% of such Personthe issued and outstanding capital stock of the MSC Subsidiary. Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the grant underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, and the existence of such security interest would not otherwise violate or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or breach any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file provision in any relevant jurisdiction any initial financing statements (including fixture filings) applicable agreement or contract that is enforceable under the UCC with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate applicable Intellectual Property, then the Collateral as all assets of such Grantor, whether now owned or hereafter acquired or words of similar effect as being of an equal or lesser scope or with greater detailshall automatically, and (ii) contain the information required by Article 9 effective as of the Uniform Commercial Code Closing Date, include the Intellectual Property to the extent necessary to permit perfection of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) Agent’s security interest in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like Rights to be extracted or timber to be cut, a sufficient description of the real property to which such Article 9 Collateral relatesPayment. Each Grantor Lender hereby agrees to provide such information Borrower, at Borrower’s expense, with any release, partial termination or other documents reasonably requested by Borrower to reflect or confirm that the Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for does not include any property excluded from the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 partydefinition thereof.
(d) The Security Interest is granted as security only 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.
Appears in 1 contract
Sources: Loan and Security Agreement (Aveo Pharmaceuticals, Inc.)
Security Interest. (a) 3.1 As security for the prompt, complete payment when due (whether on the payment dates or performance, as otherwise) of all the case may be, in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and Borrower hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, Lender a security interest (the “Security Interest”) in, all right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 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) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (Goods and other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) 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 (other than leasehold interests in real propertyj) to the extent not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) included, all Proceeds and products of any and all Supporting Obligations each of the foregoing and all collateral security accessions to, substitutions and guarantees given by any Person with respect to any replacements for, and rents, profits and products of each of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), ; provided, however, that such security interest the Collateral 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 agreement that does not result in any of the consequences specified in (i) 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”) and (ii) including, without limitation, any proceeds of such contract or agreement, not include (BA) more than 65% of the issued and outstanding voting Equity Interests capital stock of any Foreign Subsidiary that is incorporated or organized in a jurisdiction other than the United States or any Equity Interests in state or territory thereof or the District of Columbia if to do so could reasonably be expected to cause Borrower adverse tax consequences under Internal Revenue Code Section 956 (or any Person successor statute); (B) Intellectual Property (other than Rights to Payment); (C) any Equipment or Proceeds thereof that is not subject to a wholly-owned Subsidiary whereLien that is otherwise permitted by clause (vii) of the definition of “Permitted Lien” hereunder if inclusion of such Equipment would constitute a breach by Borrower of its agreement with a third party equipment lessor or lender, pursuant provided, that upon the release of any such Lien such Equipment shall be deemed to be Collateral hereunder and shall be subject to the organizational documents or any related shareholders or similar agreement security interest granted herein; (D) cash held in money market account no. 1892029636 at Comerica in an amount not to exceed $552,000 plus accrued interest to secure certain letters of such Personcredit; and (E) cash subject to a Lien permitted by clause (xiv) of the definition of “Permitted Liens”. Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the grant underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, and the existence of such security interest would not otherwise violate or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or breach any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(c) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file provision in any relevant jurisdiction any initial financing statements (including fixture filings) applicable agreement or contract that is enforceable under the UCC with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate applicable Intellectual Property, then the Collateral as all assets of such Grantor, whether now owned or hereafter acquired or words of similar effect as being of an equal or lesser scope or with greater detailshall automatically, and (ii) contain the information required by Article 9 effective as of the Uniform Commercial Code Closing Date, include the Intellectual Property to the extent necessary to permit perfection of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) Lender’s security interest in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like Rights to be extracted or timber to be cut, a sufficient description of the real property to which such Article 9 Collateral relatesPayment. Each Grantor Lender hereby agrees to provide such information Borrower, at Borrower’s expense, with any release, partial termination or other documents reasonably requested by Borrower to reflect or confirm that the Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for does not include any property excluded from the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 partydefinition thereof.
(d) The Security Interest is granted as security only 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.
Appears in 1 contract
Sources: Loan and Security Agreement (Aveo Pharmaceuticals Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Administrative Agent, its successors and assigns, for the benefit of the other Secured Parties, and hereby grants to the Collateral Administrative Agent, its successors and assigns, for the benefit of the other 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 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-letter of Credit Rightscredit rights;
(xi) Commercial Tort Claims described in commercial tort claims listed on Schedule IVV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above books and any property specifically excluded from any defined term used in any clause of this section);records pertaining to the Article 9 Collateral; and
(xiii) all books and records; and
(xiv) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, provided that notwithstanding anything herein to the contrarycontrary in this Agreement, in no event this Agreement shall the not constitute a grant of a security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include in (A) any contract Excluded Assets or agreement to which a Grantor is a party or (B) any of its rights or interests thereunder asset if and for so long as the grant Administrative Agent, in consultation with the US Borrower, reasonably determines that the cost to any Borrower of such creating or perfecting a pledge or security interest in such asset (taking into account any adverse tax consequences to Parent, the Borrowers and the other Subsidiaries (including the imposition of withholding or other material taxes on Lenders)) shall constitute or result be commercially unreasonable in (i) the unenforceability of any right view of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted benefits to be incurred pursuant to Section 4.09(b)(4) of obtained by the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedsLenders therefrom.
(cb) 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, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detail, 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 (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. Each Grantor also ratifies its authorization for the Collateral Administrative Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 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.
(dc) The Security Interest is granted as security only 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 Article 9 Collateral.9
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (CCE Spinco, Inc.)
Security Interest. (a) As security for Subject to the payment or performanceentry thereof, as the case may be, DIP Order creates in full favor of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, Agent (for the benefit of the Secured Parties), in each case, a legal, valid and hereby grants to enforceable security interest in and Lien on the Collateral Agentdescribed therein and proceeds thereof, its successors which security interest and assigns, for the benefit Lien shall be valid and perfected as of the Secured Parties, a security interest (the “Security Interest”) in, all right, title or interest in or to any and all Closing Date by entry of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person DIP Order with respect to each Loan Party and which shall constitute a continuing security interest and Lien on the Collateral having priority over all other security interests and Liens on the Collateral and securing all the Obligations, other than as set forth in the DIP Order. The Collateral Agent and Lenders shall not be required to file or record any financing statements, mortgages, notices of Lien or similar instruments, in any jurisdiction or filing office or to take any other action in order to validate, perfect or establish the priority of the foregoing;security interest and ▇▇▇▇ granted pursuant to the DIP Order.
(b) providedPursuant to Section 364(c)(1) of the U.S. Bankruptcy Code, that notwithstanding anything herein the Obligations of the Loan Parties shall at all times constitute allowed senior administrative expenses against each of the Loan Parties in the Chapter 11 Cases (without the need to file any proof of claim or request for payment of administrative expense), with priority over any and all other administrative expenses, adequate protection claims, diminution claims and all other claims against the contraryLoan Parties, in no event shall the security interest granted hereunder attach tonow existing or hereafter arising, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein kind or (ii) in a breach or termination pursuant to the terms ofnature whatsoever, or a default under, any such contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% all administrative expenses of the issued kind specified in Sections 503(b) and outstanding voting 507(b) of the U.S. Bankruptcy Code, and over any and all other administrative expense claims arising under Sections 105, 326, 328, 330, 331, 503(b), 506(c), 507(a), 507(b), 546, 726, 1113 and 1114 of the U.S. Bankruptcy Code, whether or not such expenses or claims may become secured by a judgment Lien or other non-consensual Lien, levy or attachment, which allowed claims shall for purposes of Section 1129(a)(9)(A) of the U.S. Bankruptcy Code be considered administrative expenses allowed under Section 503(b) of the U.S. Bankruptcy Code, and which shall be payable from and have recourse to all pre- and post-petition property of the Loan Parties and their estates and all proceeds thereof other than as set forth in the DIP Order.
(c) Notwithstanding anything herein (including this Section 5.19) or in any other Loan Document to the contrary, no Borrower or any other Loan Party makes any representation or warranty as to the effects of perfection or non-perfection, the priority or the enforceability of any pledge of or security interest in any Equity Interests of any Foreign Subsidiary Subsidiary, or as to the rights and remedies of the Agents or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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) Lender with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as all assets of such Grantorthereto, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 partyunder foreign law.
(d) The Security Interest is granted as security only 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.
Appears in 1 contract
Sources: Senior Secured Superpriority Debtor in Possession Credit Agreement (Audacy, 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 of the its Obligations, each Grantor Pledgor other than Holdings (all references to a Pledgor or to the Pledgors in this Article IV shall be deemed to be a reference to each Pledgor other than Holdings) hereby assigns and pledges to the Collateral Agent, Agent and its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, permitted assigns for the benefit of the Secured Parties, a continuing security interest (the “Security Interest”) inin and lien on, all right, title or and interest in or to any and all of the following assets and properties 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 regardless of where located (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rightsall Commercial Tort Claims;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this sectionthe foregoing clauses);
(xiiixii) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xivxiii) to the extent not otherwise included, all Proceeds proceeds, Supporting Obligations and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
. 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) providedany assets (including Equity Interests), that notwithstanding anything herein whether now owned or hereafter acquired, with respect to which the Collateral and Guarantee Requirement or the other paragraphs of Section 6.10 of the ABL Credit Agreement would not be required to be satisfied by reason of Section 6.10(g) of the ABL Credit Agreement if hereafter acquired, (c) any property excluded from the definition of Pledged Collateral pursuant to Section 3.01, (d) any Letter of Credit Rights to the contraryextent any Pledgor is required by applicable law to apply the proceeds of a drawing of such Letter of Credit for a specified purpose, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (Ae) any Pledgor’s right, title or interest in any license, contract or agreement to which a Grantor such Pledgor is a party or any of its rights right, title or interests interest thereunder if and for so long as to the extent, but only to the extent, that such a grant would, under the terms of such security interest shall constitute license, contract or agreement, result in (i) the unenforceability of any right of the Grantor therein or (ii) in a breach or termination pursuant to of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any such license, contract or agreement to which such Pledgor is a party (other than to the extent that any such term would be rendered ineffective pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law (including, without limitation, Title 11 of the United States Code) or principles of equity), ; provided, howeverthat immediately upon the ineffectiveness, that lapse or termination of any such provision, the Collateral shall include, and such Pledgor shall be deemed to have granted a security interest shall attach immediately at in, all such time rights and interests as the condition causing if such unenforceability shall be remedied andprovision had never been in effect, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (iif) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets Equipment owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof Pledgor that are is subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as purchase money lien or a Capital Lease Obligation if the contract or other agreement in which such Lien is granted (or the documentation providing for such IndebtednessCapital Lease Obligation) validly prohibits or requires the consent of any person other than the Pledgors as a condition to the creation of any other Lien security interest on such assets and proceedsEquipment.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (ai) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (bii) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 as secured party.
(dc) The Security Interest is granted as security only 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.9
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Noranda Aluminum Holding CORP)
Security Interest. (a) 3.1 As security for the prompt and complete payment when due (whether on the payment dates or performance, as otherwise) of all the case may be, in full of the Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby Borrower grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, Agent a security interest (the “Security Interest”) in, 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 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, title or interest (collectively, the “Article 9 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) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) Goods; and all other tangible and intangible personal property (other than leasehold interests 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 real property) the possession or under the control of Agent; and, to the extent not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) included, all Proceeds and products of any and all Supporting Obligations each of the foregoing and all collateral security accessions to, substitutions and guarantees given by any Person with respect to any replacements for, and rents, profits and products of each of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), ; provided, however, that such 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”).
3.2 Notwithstanding the broad grant of the security interest set forth in Section 3.1 above, the Collateral 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 agreement that does not result in any of the consequences specified in include: (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (Ba) more than 65% of the presently existing and hereafter arising issued and outstanding voting Equity Interests shares of capital stock owned by Borrower of any Foreign Subsidiary (other than an Eligible Foreign Subsidiary) which shares entitle holder thereof to vote for directors or any Equity Interests in any Person that is not a wholly-owned Subsidiary whereother matter; (b) nonassignable licenses or contracts, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without which by their terms require the consent of the equity holders licensor thereof or another party (but only to the extent such prohibition on transfer is enforceable under applicable law including, without limitation, Sections 9406, 9407 and 9408 of such Person (other than the Borrower or any wholly-owned Subsidiary thereofUCC); and (Cc) assets property owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof Borrower that are is subject to a purchase money Lien securing Indebtedness or a capital lease (and the proceeds thereof) permitted to be incurred under this Agreement if the contractual obligation pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or in the documentation document providing for such Indebtednesscapital lease) validly prohibits or requires the consent of any person other than Borrower which has not been obtained as a condition to the creation of of, any other Lien on such assets and proceedsproperty.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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.
Appears in 1 contract
Security Interest. (a) 4.1. As security for the payment or prompt performance, as the case may be, observance and payment in full of the all Obligations, each Grantor we hereby assigns grant to you a continuing security interest in, a lien upon and pledges to the Collateral Agent, its successors and assigns, for the benefit a right of the Secured Partiessetoff against, and we hereby grants assign, transfer, pledge and set over to you the Collateral Agent, its successors and assigns, for the benefit following (which together with any of the Secured Parties, our other property in which you may at any time have a security interest or lien, whether pursuant to this Agreement or any supplement hereto, or otherwise, are herein collectively referred to as the "Collateral"): All present and future (a) Accounts; (b) moneys, securities and other property and the “Security Interest”proceeds thereof, now or hereafter held or received by, or in transit to, you from or for us, whether for safekeeping, pledge, custody, transmission, collection or otherwise, and all of our deposits (general or special), balances, sums and credits with you at any time existing; (c) in, all of our right, title or interest in or to any and interest, and all of the following assets our rights, remedies, security and properties now owned or at any time hereafter acquired by such Grantor or liens, in, to and in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations respect of the foregoing Accounts and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) providedother Collateral, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds rights of such contract stoppage in transit, replevin, repossession and reclamation and other rights and remedies of an unpaid vendor, lienor or agreementsecured party, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract guaranties or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation contracts of any other Lien on such assets and proceeds.
(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) suretyship with respect to the Article 9 Accounts and other Collateral, deposits or other security for the obligation of any Account Debtor, and credit and other insurance; (d) all of our right, title and interest in, to and in respect of all goods relating to, or which by sale have resulted in, Accounts including, without limitation, all goods described in invoices, documents, contracts or instruments with respect to, or otherwise representing or evidencing, any Accounts or other Collateral, including without limitation, all returned, reclaimed or repossessed goods; (e) all deposit accounts; (f) all books, records, ledger cards, computer programs, and other property and general intangibles evidencing or relating to the Accounts, and any other Collateral or any part thereof Account Debtor, together with the file cabinets or containers in which the foregoing are stored ("Records"); (g) all other general intangibles of every kind and amendments thereto that description, including without limitation, trade names and trademarks, and the goodwill of the business symbolized thereby, patents, copyrights, licenses and Federal, State and local tax refund claims of all kinds and (ih) indicate all products and proceeds of the foregoing, in any form, including, without limitation, insurance proceeds and any claims against third parties for loss or damage to or destruction of any or all of the foregoing.
4.2. We shall keep and maintain, at our cost and expense, satisfactory and complete books and records of all Accounts, all payments received or credits granted thereon, and all other dealings therewith. At such times as you may request, we shall deliver to you all original documents evidencing the sale and delivery of goods or the performance of services which created any Accounts, including but not limited to all original contracts, orders, invoices, bills of lading, warehouse receipts, delivery tickets and shipping receipts, together with schedules describing the Accounts and/or written confirmatory assignments to you of each Account, in form and substance satisfactory to you and duly executed by us, together with such other information as you may request. In no event shall the making or the failure to make or the content of any schedule or assignment or our failure to comply with the provisions hereof be deemed or construed as a waiver, limitation or modification of your security interest in, lien upon and assignment of the Collateral as all assets of such Grantoror our representations, whether now owned warranties or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. The Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (covenants under this Agreement or any successor office 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 partysupplement hereto.
(d) The Security Interest is granted as security only 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.
Appears in 1 contract
Sources: Accounts Receivable Financing Security Agreement (Hjelms Jim Private Collection LTD /De/)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Secured Obligations, each Grantor hereby pledges, assigns and pledges grants to the Term Collateral Agent, its successors on behalf of and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, in all of its right, title or and interest in or in, to any and under all of the following assets property and properties other assets, whether 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 (collectively, are collectively referred to as the “Article 9 Collateral”):
(ia) all Accounts;
(iib) all Chattel Paper (including Electronic Chattel Paper and Tangible Chattel Paper);
(iiic) all Intellectual Property;
(d) all Documents;
(e) all Equipment;
(f) all Fixtures;
(g) all General Intangibles;
(h) all Goods;
(i) all Instruments;
(j) all Inventory;
(k) all Investment Property;
(l) all Letter-of-Credit Rights and Supporting Obligations;
(m) all Deposit Accounts;
(ivn) [Reserved.];
(o) all Documents Commercial Tort Claims as specified from time to time in Schedule IV hereto (other than title documents relating as the same may be updated from time to vehiclestime in accordance with the terms hereof);
(vp) all Equipmentcash or other property deposited with the Term Collateral Agent or any Secured Party or any Affiliate of the Term Collateral Agent or any Secured Party or which the Term Collateral Agent, for its benefit and for the benefit of the other Secured Parties, or any Secured Party or such Affiliate is entitled to retain or otherwise possess as collateral pursuant to the provisions of this Agreement or the Credit Agreement;
(viq) all General Intangiblesbooks, records, files, correspondence, computer programs, tapes, disks and related data processing software which contain information identifying or pertaining to any of the foregoing 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;
(viir) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) LetterAs-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and recordsExtracted Collateral; and
(xivs) all Proceeds and products of any and all Supporting Obligations 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 any claims against third parties for loss of, damage to or destruction of any or all collateral security and guarantees given by any Person of the Collateral or for proceeds payable under or unearned premiums with respect to any policies of insurance) in whatever form, including cash, negotiable instruments and other instruments for the foregoing;
(b) providedpayment of money, that notwithstanding Chattel Paper, collateral agreements and other documents. Notwithstanding the foregoing or anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” include or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall Security Interest 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 agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedsExcluded Collateral.
(cb) Each Grantor hereby irrevocably authorizes the Term Collateral Agent for the benefit of the Secured Parties at any time and from time to time to file in any relevant U.S. jurisdiction any initial 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 Term 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” of such Grantor, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detaileffect, 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 (a) whether such Grantor is an organization, the type of organization and and, if required, any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 relatesGrantor. Each Grantor agrees to provide such information to the Term Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. The Term Collateral Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Office (or any successor office or any similar office in any other country) 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 Term Collateral Agent as secured party.
(dc) The Security Interest is and the security interest granted pursuant to Article II are granted as security only and shall not subject the Term 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.
Appears in 1 contract
Sources: Term Collateral Agreement (Installed Building Products, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Each Grantor hereby assigns and pledges to the Collateral Agent, its successors Secured Party a first priority security interest in and assigns, for the benefit to all of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, all Company’s right, title or and interest in or and to any and all the following collateral of the following assets and properties Company, whether now owned or at any time hereafter existing 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 (collectively, the “Article 9 Collateral”):
): all personal property and fixtures of every kind and nature, including, without limitation, accounts; inventory; equipment; goods; instruments (i) including, without limitation, all Accounts;
promissory notes); documents; chattel paper (ii) all Chattel Paper;
whether tangible or electronic); deposit accounts; letter-of-credit rights (iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicleswhether or not the letter of credit is evidenced by a writing);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) ; commercial tort claims; securities and all other personal property investment property; supporting obligations, any other contract rights or rights to the payment of money, insurance claims and proceeds; all general intangibles (other than leasehold interests in real including, without limitation, all payment intangibles and intellectual property) not otherwise described above (except for ); any property specifically excluded from accessions and additions to any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;proceeds thereof.
(b) provided, that notwithstanding anything herein This Agreement secures the payment and performance of all obligations of ForceField to the contrary, in no event shall Sellers now or hereafter existing under the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” Notes or “Pledged Stock” include this Security Agreement (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in foregoing may be amended, modified or supplemented from time to time), whether for principal, interest, costs, expenses, indemnities or otherwise (i) or (ii) including, without limitation, any proceeds all of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Personobligations, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof“Secured Obligations”); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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 Payment to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate Sellers under the Collateral as all assets of such Grantor, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) Notes shall be made on a timely basis in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. The Collateral Agent is further authorized to file accordance with the United States Patent and Trademark Office or United States Copyright Office (or any successor office 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 partyterms thereof.
(d) The Security Interest is granted Upon the occurrence of any Event of Default, as security only defined herein, and shall not subject if the Collateral Agent or any other Secured Party to, or in proceeds to exercise any way alter or modify, any obligation or liability of any Grantor rights with respect to or arising out the Collateral, the Sellers shall share the Collateral and the proceeds of such Collateral ratably, without priority of one over the Article 9 Collateralother.
Appears in 1 contract
Security Interest. (a) As Administrative Agent, Buyers, and ▇▇▇▇▇▇ intend that all Transactions hereunder be sales to Administrative Agent, on behalf of ▇▇▇▇▇▇, of the Purchased Assets (other than any Mezzanine Loan) for all purposes (other than for U.S. federal, state and local income or franchise tax purposes) and not loans from Buyers to Seller secured by the Purchased Assets. However, in the event that any Transaction is deemed to be a loan, Seller hereby pledges to Administrative Agent, on behalf of ▇▇▇▇▇▇, as security for the payment or performance, as the case may be, in full performance by Seller of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, Repurchase Obligations and hereby grants to the Collateral Administrative Agent, its successors and assigns, for the benefit on behalf of the Secured PartiesBuyers, a first priority security interest (the “Security Interest”) in, in all of Seller’s right, title or and interest in or and to any and all of the following assets and properties 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 (collectively, and together with the Mezzanine Loan Repurchase Assets (as defined below), the “Article 9 CollateralRepurchase Assets”):
(i) all Accountsof the Purchased Assets (including, for the avoidance of doubt, all security interests, mortgages and liens on personal or real property securing the Purchased Assets) and related Servicing Rights;
(ii) all Chattel PaperIncome from the Purchased Assets;
(iii) all Deposit Accountsinsurance policies and insurance proceeds relating to any Purchased Asset or the related Eligible Property;
(iv) all Documents (other than title documents “general intangibles”, “accounts” and “chattel paper” as defined in the UCC relating to vehicles)or constituting any and all of the foregoing;
(v) all Equipmentreplacements, substitutions or distributions on or proceeds, payments and profits of, and records and files relating to, any and all of the foregoing;
(vi) any other property, rights, titles or interests as are specified in the Confirmation and/or the Trust Receipt, the Purchased Asset Schedule or exception report with respect to the foregoing in all General Intangibles;instances, whether now owned or hereafter acquired, now existing or hereafter created; and
(vii) the Blocked Account and all Instruments;amounts and property from time to time on deposit therein and all replacements, substitutions or distributions on or proceeds, payments and profits of, and records and files relating to, the Blocked Account.
(viiib) With respect to the security interest in the Repurchase Assets granted in Section 6(a) and Section 6(f) hereof, and with respect to the security interests granted in Sections 6(c) and 6(d), Administrative Agent, on behalf of Buyers, shall, upon the occurrence and during the continuance of an Event of Default, have all Inventory;of the rights and may exercise all of the remedies of a secured creditor under the UCC and any other applicable law and shall have the right to apply the Repurchase Assets or proceeds therefrom to the obligations of Seller under the Transaction Documents. In furtherance of the foregoing, (i) Administrative Agent, on behalf of Buyers, at Seller’s sole cost and expense, shall cause to be filed as a protective filing with respect to the Repurchase Assets and as a UCC filing with respect to the security interests granted in Sections 6(c) and 6(d) one or more UCC financing statements in form satisfactory to Administrative Agent, on behalf of Buyers (to be filed in the filing office indicated therein) and, with respect to Seller, containing the following collateral description “all assets of the debtor, whether now owned or hereafter acquired” or words to that effect and, with respect to Pledgor, describing all of the items set forth in the definition of Collateral in the Pledge Agreement, in such locations as may be necessary to perfect and maintain perfection and priority of the outright transfer (including under Section 22 of this Agreement) and the security interest granted hereby and, in each case, continuation statements and any amendments thereto (collectively, the “Filings”), and shall forward copies of such Filings to Seller upon completion thereof, and (ii) Seller and Pledgor shall, from time to time, at its own expense, deliver and cause to be duly filed all such further filings, instruments and documents and take all such further actions as may be necessary or desirable or as may be requested by Administrative Agent, on behalf of Buyers, with respect to the perfection and priority of the outright transfer of the Purchased Assets and the security interest granted hereunder in the Repurchase Assets and the other collateral specified in Sections 6(c) and 6(d) and the rights and remedies of Administrative Agent, on behalf of Buyers, with respect to the Repurchase Assets (including under Section 22 of this Agreement) (including the payments of any fees and Taxes required in connection with the execution and delivery of this Agreement).
(ixc) Seller hereby pledges to Administrative Agent, for the benefit of ▇▇▇▇▇▇, as security for the performance by Seller of the Repurchase Obligations and hereby grants to Administrative Agent, on behalf of ▇▇▇▇▇▇, a first priority security interest in all Investment Property;of Seller’s right, title and interest in and to Seller’s rights under all Hedging Transactions relating to Purchased Assets entered into by Seller and all proceeds thereof. So long as no Event of Default shall be continuing, Administrative Agent, on behalf of ▇▇▇▇▇▇, agrees that it will not redirect payments under any Hedging Transaction pledged to Administrative Agent, on behalf of Buyers, pursuant to the terms of this Section 6(c).
(xd) Letter-of Credit Rights;[Reserved].
(xie) Commercial Tort Claims described In connection with the repurchase by Seller of any Purchased Asset in Schedule IV;accordance herewith, upon receipt of the Repurchase Price by Administrative Agent, on behalf of Buyers, Administrative Agent, on behalf of ▇▇▇▇▇▇, will deliver to Seller, at Seller’s expense, such documents and instruments as may be reasonably necessary and requested by Seller to reconvey such Purchased Asset and any Income related thereto to Seller.
(xiif) In order to further secure the Repurchase Obligations hereunder, Seller hereby grants, assigns and pledges to Administrative Agent, on behalf of Buyers, a fully perfected first priority security interest in the Mezzanine Loans, all other personal replacements, substitutions or distributions on, or proceeds, payments and profits of, and records and files relating thereto, and all related Servicing Rights, the Transaction Documents (to the extent such Transaction Documents and Seller’s right thereunder relate to the Mezzanine Loans), all documentation governing the Mezzanine Loans, any right or interest in or to property of any kind whatsoever, whether real, personal, or mixed and whether tangible or intangible, relating to the Mezzanine Loans, all insurance policies and insurance proceeds relating to any Mezzanine Loans or the related Mortgaged Property, including, but not limited to, any payments or proceeds under any related primary insurance, hazard insurance, Income, interest rate protection agreements, accounts (other than leasehold interests including any interest of Seller in real propertyescrow accounts) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from other contract rights, instruments, accounts, payments, rights to payment (including payments of interest or finance charges), general intangibles and other assets relating to the Mezzanine Loans (including, without limitation, any defined term used other accounts) or any interest in Mezzanine Loans, and any clause of this section);
proceeds (xiiiincluding the related securitization proceeds) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person distributions with respect to any of the foregoing;
(b) providedforegoing and any other property, that notwithstanding anything herein to the contraryrights, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) any contract or agreement to which a Grantor is a party or any of its rights title or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (i) the unenforceability of any right of the Grantor therein or (ii) in are specified on 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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) Confirmation and/or Trust Receipt with respect to the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as Mezzanine Loans, in all assets of such Grantorinstances, whether now owned or hereafter acquired acquired, now existing or words of similar effect as being of an equal or lesser scope or with greater detail, and hereafter created (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 (a) whether such Grantor is an organizationcollectively, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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“Mezzanine Loan Repurchase Assets”).
(d) The Security Interest is granted as security only 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.
Appears in 1 contract
Sources: Master Repurchase and Securities Contract Agreement (FS Credit Real Estate Income Trust, Inc.)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Administrative Agent, its successors and assigns, for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Administrative Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in), in all right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) all Letter-of of-Credit Rights;
(xi) all Commercial Tort Claims described in Schedule IVset forth on the Perfection Certificate, as the same may be supplemented from time to time;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above books and any property specifically excluded from any defined term used in any clause of this section);records pertaining to the Article 9 Collateral; and
(xiii) all books and records; and
(xiv) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;.
(b) provided, that notwithstanding Notwithstanding anything herein to the contrary, in no event shall the Pledged Collateral or Article 9 Collateral include, and no Grantor shall be deemed to have granted a security interest granted hereunder attach toor under any other Loan Document in, nor the terms “Article 9 Collateral” or “Pledged Stock” include (AI) any General Intangible, Instrument, license, property right, permit or any other 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 (ix) the abandonment, invalidation, voiding or unenforceability of any right right, title or interest of the Grantor therein (including in any Trademark application filed on an intent to use basis until the filing and acceptance of a statement of use), (y) a violation of a valid and enforceable restriction in respect of such General Intangible, Instrument, license, property right, permit or any other contract or agreement or other such rights (1) in favor of a third party or (ii2) in under any law, regulation, permit, order or decree of any Governmental Authority or (z) a breach or termination (or result in any party thereto having the right to terminate) pursuant to the terms of, or a default under, such General Intangible, Instrument, license, property right, permit or any such other contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), ; provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability or breach or termination, as the case may be, shall be remedied and, to the extent severable, shall attach immediately to any portion of such General Intangible, Instrument, license, property right, permit or any other contract or agreement that does not result in any of the consequences specified in the immediately preceding clause (ix), (y) or (iiz) including, without limitation, any proceeds of such General Intangible, Instrument, license, property rights, permit or any other contract or agreement, ; (BII) more than 65% of the issued and outstanding voting Equity Interests in any Foreign Subsidiary, (III) the Equity Interests in any Unrestricted Subsidiary or any Foreign Subsidiary that is not a first tier Foreign Subsidiary, (IV) the Equity Interests of any Foreign Subsidiary or to the extent the grant of any security interest therein would require the approval of any Governmental Authority, (V) Equity Interests in of any Person that is not a other than wholly-owned Subsidiary where, pursuant Subsidiaries of the Loan Parties to the extent not permitted by the terms of such Person’s organizational documents or any related joint venture agreement, shareholders agreement or similar agreement of equivalent document relating to such Person, the grant (VI) any vehicle or other asset subject to certificate of title, (VII) owned real property (together with improvements thereof and any related mineral rights owned by any Loan Party intended to be accessed through such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person real property) and all leasehold interests (other than any such owned real property and leasehold interests that are subject to or required to be subject to a Mortgage under the Borrower or Credit Agreement), (VIII) any wholly-owned Subsidiary thereof); and (C) assets asset owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are is subject to a Lien securing Indebtedness purchase money lien or a Capital Lease Obligation permitted to be incurred pursuant to Section 4.09(b)(4) of under the Indenture to the extent and for so long as Credit Agreement if the contract or other agreement in which such Lien is granted (or the documentation providing for such IndebtednessCapital Lease Obligation) validly prohibits or requires the consent of any Person other than the Grantors as a condition to the creation of any other Lien security interest on such asset, (IX) to the extent applicable law requires that a Subsidiary of such Grantor issue directors’ qualifying shares, such shares or nominee similar shares, (X) any assets (including Capital Stock) to the extent that such grant of a security interest is prohibited by any applicable law, treaty, rule or regulation, (XI) any Excluded Deposit Accounts, and proceeds(XII) any assets with respect to which the Administrative Agent shall reasonably determine that the cost of creating and/or perfecting a security interest therein is excessive in relation to the benefit to the Secured Parties (collectively, “Excluded Collateral”).
(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 Article 9 Collateral as “all assets assets” of such Grantor, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detaileffect, 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 (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. Each Grantor also ratifies its authorization for the Collateral Administrative Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 or any similar office in any other country) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as debtors and the Collateral Administrative Agent as secured party.
(d) The Security Interest and the security interest granted pursuant to this Article IV is granted as security only 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 Article 9 Collateral.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the its Canadian Secured Obligations, each Grantor hereby assigns assigns, pledges and pledges hypothecates to the Collateral Administrative Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants and hypothecates to the Collateral Administrative Agent, its successors and assigns, for the 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 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 (collectively, the “Article 9 Personal Property Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)of Title;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment PropertySecurities;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and recordsrecords pertaining to the Personal Property Collateral; and
(xivxi) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;.
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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) or financing change statements with respect to the Article 9 Personal Property Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as all assets of such Grantor, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detail, detail and (ii) contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction PPSA for the filing of any financing statement, financing change statement or amendment, including (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Personal Property 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 Personal Property Collateral relates. Each Grantor agrees to provide such information to the Collateral Administrative Agent promptly upon request. Each Grantor also ratifies its authorization for the Collateral Administrative Agent to file in any relevant jurisdiction any initial financing statements, financing change statements or amendments thereto if filed prior to the date hereof. The Collateral Administrative Agent is further authorized to file with the United States Patent and Trademark Office or United States Copyright Canadian Intellectual Property Office (or any successor office 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 Interest, including a notice of grant of 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.
(dc) The Security Interest is granted as security only 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 Article 9 Personal Property Collateral.
(d) Notwithstanding anything herein to the contrary, (i) in no event shall the Security Interest granted hereunder attach to (x) any license, 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, (B) a breach or termination pursuant to the terms of, or a default under, any such license, contract or agreement (other than to the extent any such term would be rendered ineffective pursuant to the PPSA or any other applicable law or principles of equity) or (C) the violation of any law applicable to such Grantor or (y) any property or asset of any Grantor securing Indebtedness that prohibits the granting of any other Lien on such property or asset, in each case as permitted under the Credit Agreement; provided, however, that, in the case of clauses (x) and (y), such Security Interest shall attach immediately at such time as the condition causing such unenforceability or prohibiting the granting of any other Lien, as the case may be, shall be remedied and, in the case of clause (x), to the extent severable, shall attach immediately to any portion of such license, contract or agreement that does not result in any of the consequences specified in clause (A), (B) or (C) above, including, without limitation, any proceeds of such contract or agreement, and (ii) the term “Personal Property Collateral” shall not include any asset of any Grantor to which the Security Interest has not attached pursuant to this clause (d).
(e) The Personal Property Collateral shall not include the last day of the term of any lease or agreement therefor but upon the enforcement of the Security Interest granted hereby in the Personal Property Collateral, the Grantors or any of them shall stand possessed of such last day in trust to assign the same to any person acquiring such term.
(f) The term “Goods” when used in this Agreement shall not include “consumer goods” of any Grantor as that term is defined in the PPSA.
Appears in 1 contract
Sources: Canadian Security Agreement (Indalex Holdings Finance Inc)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the 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 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of of-Credit Rightsrights;
(xi) Commercial Tort Claims as described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above books and any property specifically excluded from any defined term used in any clause of this section);records pertaining to the Article 9 Collateral; and
(xiii) all books and records; and
(xiv) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;.
(b) providedEach 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 as being of an equal or lesser scope or with greater detail, that notwithstanding 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 (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request.
(c) Notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) to 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(cd) Each Grantor hereby irrevocably authorizes Notwithstanding 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 foregoing, the Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Collateral as all assets of such Grantor, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including shall not include (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledged Collateral or (b) any Collateral (as defined in the case of a financing statement filed as a fixture filing 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 requestAgreement). Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office or any similar office in any other countryoffice) 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.
(de) The Security Interest is granted as security only 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.
Appears in 1 contract
Sources: Credit Agreement (Blockbuster 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 of the its Obligations, each Grantor (i) confirms and reaffirms its prior continuing grant to the extent that “Collateral” (as defined in the Existing Collateral Agreement) of such Grantor also constitutes “Collateral” under this Agreement and (ii) hereby assigns and pledges to the Collateral Administrative Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Administrative Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, in all right, title or and interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit AccountsAccounts other than Deposit Accounts that solely contain Proceeds of assets and properties not otherwise constituting Collateral;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all EquipmentGeneral Intangibles other than (i) Intellectual Property and (ii) Payment Intangibles arising from the disposition of assets which do not constitute Collateral;
(vi) all General IntangiblesInstruments constituting a right to payment arising from the sale of Inventory;
(vii) all InstrumentsInventory;
(viii) all InventoryLetter-of-Credit Rights constituting a right to payment arising from the sale of Inventory ;
(ix) all Investment PropertyCommercial Tort Claims set forth on Schedule III;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded Payment Intangibles arising from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products the disposition of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoingCollateral;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(d) The Security Interest is granted as security only 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.
Appears in 1 contract
Sources: Credit Agreement (Verso Corp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Secured Obligations, each the Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in), in all of the Grantor’s right, title or interest in or to any and all of the following assets and properties now owned or at any time hereafter acquired by such the Grantor or in which such the Grantor now has or at any time in the future may acquire any right, title or interest (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel PaperDeposit Accounts;
(iii) all Deposit AccountsDocuments;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(v) the Collection Account;
(vi) the Debt Service Account;
(vii) all Media Revenues;
(viii) the Grantor’s rights in respect of Local Media Contracts;
(ix) all Membership Rights;
(x) all Expansion Revenues;
(xi) all Ticket Rights;
(xii) all Employee Contracts;
(xiii) all Instruments;
(viiixiv) all InventoryInvestment Property that shall arise from any investment from time to time in the Debt Service Account;
(ixxv) all Investment Propertymoney market deposit accounts maintained with the Collateral Agent for the purpose of investing amounts deposited in the Collection Account and the Debt Service Account;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiiixvi) all books and recordsrecords pertaining to any of the foregoing; and
(xivxvii) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given to the Grantor by any Person with respect to any of the foregoing;
; in each case, except that the Article 9 Collateral shall not include (bw) providedany Investment Property other than Investment Property pursuant to clause (xiv) above, that notwithstanding anything herein (x) any property or assets to the contraryextent such item (other than any item constituting Core Collateral) has been assigned, pledged or otherwise transferred by the Grantor to any Person (other than the Secured Parties) in a transaction that is not prohibited by the Credit Agreement or any other Loan Document, (y) any Commingled Assets, and (z) any United States “intent to use” trademark application or intent-to-use service ▇▇▇▇ application filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ Act solely to the extent, if any, that, and solely during the period, if any, in no event shall which, the grant of a security interest granted hereunder attach totherein would impair the validity of, nor or render void or voidable or result in the terms “Article 9 Collateral” cancellation of the Grantor’s right, title or “Pledged Stock” include (A) any contract or agreement to which a Grantor is a party interest therein or any Trademark issued as a result of its such application under applicable federal law, or any Trademark or other rights therein or interests thereunder thereto if the grant of a lien on or security interest in such Trademark would result in the cancellation or voiding of such Trademark or such rights. This Agreement shall not constitute a grant of a security interest in any property or assets to the extent that, and for so long as the as, such grant of such a security interest shall constitute is prohibited by any requirement of law, rule or result in (i) the unenforceability regulation, requires a consent not obtained of any right of the Grantor therein Governmental Authority pursuant to any such law, rule or (ii) in regulation, is prohibited by, or constitutes a breach or default under or results in the termination pursuant to the terms of, of or a default requires any consent not obtained under, any such contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406contract, 9-407license, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% instrument or other document evidencing or giving rise to such property or assets or, in the case of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary whereof the Borrower, to the extent, and for so long as, such grant requires, pursuant to the organizational constituent documents of such Person or any related shareholders joint venture, shareholder or similar agreement binding on any shareholder, partner or member of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders any governing body of such Person or Persons (other than of the Borrower or any wholly-owned Subsidiary thereof); of its Affiliates) holding Equity Interests in such Person and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture such consent shall not have been obtained, except in each case to the extent and for so long as that such requirement of law, rule or regulation or the contract term in such contract, license, agreement, instrument or other document or constituent documents, shareholder or similar agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on prohibition, breach, default or termination or requiring such assets and proceedsconsent is ineffective under applicable law, rule or regulation.
(cb) Each The Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction in the United States 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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such the Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 relatesGrantor. Each The Grantor agrees to provide such information to the Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office or any similar office or agency in any other countrythe United States) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each the Grantor, without the signature of any the Grantor, and naming any the Grantor or the Grantors as debtors debtor and the Collateral Agent as secured party.
(dc) The Security Interest is granted as security only and shall not subject the Collateral Agent or any other Secured Party to, or in any way alter or modify, any obligation or liability of any the Grantor with respect to or arising out of the Article 9 Collateral.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may beapplicable, in full of the Secured Obligations, each Grantor Credit Party hereby assigns reaffirms and pledges confirms the security interest granted pursuant to the Existing Guarantee and Collateral Agreement and also grants to the Administrative Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the ratable benefit of the Secured Parties, a security interest (the “Security Interest”) in, in all right, title or and interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) the Deposit Accounts and all Accountscash or other assets or proceeds deposited therein;
(ii) all Chattel PaperAgency Collateral;
(iii) all Deposit AccountsMSR Assets, whether or not yet accrued, earned, due or payable, as well as all other present and future rights and interests of the Credit Parties in MSR Assets;
(iv) all Documents (other than title documents relating to vehicles)Income in respect of the MSR Assets;
(v) all EquipmentIntellectual Property;
(vi) all General IntangiblesContracts and all Contract Rights;
(vii) all Instrumentsthe “commercial tort claims” (as defined in the UCC) specified on Schedule IV;
(viii) all Inventorybooks and records pertaining to the Article 9 Collateral;
(ix) to the extent not otherwise included above, any and all Investment Propertyother Property held at any time by any of the Credit Parties;
(x) Letter-all “accounts,” “chattel paper,” “documents,” “equipment,” “fixtures,” “general intangibles,” “goods,” “instruments,” “inventory,” “investment property,” “letter of Credit Rights;credit rights” and “securities accounts” as each of those terms is defined in the UCC and all cash and Cash Equivalents and all products and proceeds relating to or constituting any or all of the foregoing; and
(xi) Commercial Tort Claims described in Schedule IV;
(xii) to the extent not otherwise included above, all other personal property assets of each Credit Party (other than leasehold interests in real propertyExcluded Assets) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds proceeds and products of any and all Supporting Obligations of the foregoing and all accessions (as such term is defined in the UCC) to any of the foregoing, collateral security security, supporting obligations and guarantees given by any Person with respect to any of the foregoing. Notwithstanding the foregoing, neither the Article 9 Collateral nor the Pledged Securities shall include the following (collectively, the “Excluded Assets”):
(i) any obligation or property of any kind due from, owed by or belonging to any Sanctioned Person,
(ii) any assets that are subject to a purchase money lien or capital lease permitted under the Credit Agreement to the extent the documents relating to such purchase money lien or capital lease would not permit such assets to be subject to the Security Interests created hereby or the grant or perfection of additional Lien would result in a breach or termination of, or constitutes a default under, the documentation governing such Liens or the obligations secured by such Liens,
(iii) any lease, license or other contract, including, without limitation, all Collateral Transaction Documents, if the grant of a security interest therein under the terms thereof or under applicable law, rule or regulation, is prohibited, or would give any other party thereto (other than a Credit Party) the right to terminate such lease, license or other contract,
(iv) any tangible or intangible asset if (but only to the extent that) the grant of a security interest therein would be prohibited by applicable law, rule or regulation, and binding judicial interpretations in connection therewith,
(v) motor vehicles;
(vi) Excluded Property,
(vii) any United States federal intent-to-use Trademark or service mark application prior to the filing of a statement or use or amendment to allege use, or any other intellectual property, to the extent that applicable law or regulation prohibits the creation of a security interest or would otherwise result in the loss of rights from the creation of such security interest or from the assignment of such rights upon the occurrence and continuance of a Default or Event of Default;
(viii) those assets (including, without limitation, MSR Assets) as to which both the Administrative Agent and the Borrower reasonably determine that the cost of obtaining such a security interest or perfection thereof are excessive in relation to the benefit to the Secured Parties of the security to be afforded thereby;
(ix) all Equity Interests in any Excluded Subsidiary described in clauses (a) through (c) of such definition;
(x) with respect to any F▇▇▇▇▇ M▇▇ Designated Loans, any MSR Assets and other assets of WDLLC and WD Capital expressly excluded from the definition of F▇▇▇▇▇ M▇▇ Collateral pursuant to the provisions of Section 8.01(a) or otherwise under any applicable Agency Consent provided by F▇▇▇▇▇ M▇▇ (but only as and to the limited extent, and only for so long as, any such assets are expressly excluded);
(xi) with respect to any F▇▇▇▇▇▇ ▇▇▇ Designated Loans, all Excluded F▇▇▇▇▇▇ ▇▇▇-Related Assets;
(xii) with respect to any G▇▇▇▇▇ M▇▇ Designated Loans, any MSR Assets and other assets of WDLLC and WD Capital expressly excluded from the definition of G▇▇▇▇▇ M▇▇ Collateral pursuant to the provisions of Section 8.03(a) or otherwise under any applicable Agency Consent provided by G▇▇▇▇▇ M▇▇ (but only as and to the limited extent, and only for so long as, any such assets are expressly excluded); and
(xiii) any Equity Interests of each First Tier Foreign Subsidiary in excess of 65% of the outstanding Voting Equity Interests and 100% of the non-Voting Equity Interests of each such First Tier Foreign Subsidiary; provided, that the exclusions in clauses (ii), (iii), and (iv) shall not apply to the extent that, and for so long as (x) such prohibition or restriction is not enforceable or is otherwise ineffective under Applicable Law (including the UCC) or (y) consent to such security interest has been obtained from any applicable third party; provided that (1) nothing in this Agreement or any other Loan Document shall affect, limit, restrict or impair the grant by any Credit Party of a Security Interest in any corresponding account or any corresponding money or other amounts due and payable to any Credit Party or to become due and payable to any Credit Party under any lease, instrument, contract or agreement, a security interest in which is prohibited or restricted as described in clauses (ii), (iii) or (iv) above, unless such security interest in such corresponding account, money or other amount due and payable is also specifically prohibited or restricted by the terms of such lease, instrument, contract or other agreement or such security interest in such corresponding account, money or other amount due and payable would expressly constitute a default under or would expressly grant a party a termination right under any such lease, instrument, contract or agreement governing such right unless, in each case, (x) such prohibition is not enforceable or is otherwise ineffective under Applicable Law (including the UCC) or (y) consent to such security interest has been obtained from any applicable third party; and (2) the Security Interests granted herein shall immediately and automatically attach to and the term “Collateral” shall immediately and automatically include the rights under any such lease, instrument, contract or agreement and in any corresponding account, money, or other amounts due and payable to any Credit Party at such time as such prohibition, restriction, event of default or termination right terminates or is waived or consent to such security interest has been obtained from any applicable third party;
(b) provided, that notwithstanding anything herein Pursuant to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right Section 9-509 of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(c) Each Grantor Applicable Law, each Credit Party 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 other than Excluded Assets” of such Grantor, whether now owned Credit Party or hereafter acquired or words of such other similar effect as being of an equal or lesser scope or with greater detail, description 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 (a) whether such Grantor Credit Party is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) Credit Party, in the each case of a so long as such financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like statements also contain any language required to be extracted or timber contained therein pursuant to be cut, a sufficient description of the real property to which such Article 9 Collateral relatesAgency Consents. Each Grantor Credit Party agrees to provide such information to the Collateral Administrative Agent promptly upon request. The authorization granted in this Section 4.01 does not in any way limit the obligations of the Credit Parties set forth in Sections 4.01(e) and 4.03(d). Each Grantor Credit Party also ratifies its authorization for the Collateral Administrative Agent to file in any relevant jurisdiction jurisdictions any initial financing statements (including fixture filings, as applicable) or other appropriate filings, recordings or registrations or amendments thereto if filed thereto. On or prior to the Closing Date, each Credit Party shall indicate on their respective internal records that the Administrative Agent, on behalf of the Secured Parties, has acquired a security interest therein as provided in this Agreement.
(c) Subject to Section 8.19 of the Credit Agreement, on or before the Closing Date (or promptly but in no event more than twenty (20) days after the date hereof. of acquisition thereof if acquired after the Closing Date), the related Credit Party shall provide to the Administrative Agent:
(i) in the case of MSR Assets related to an Agency Contract, an Agency Consent, duly executed by the Administrative Agent, Lenders, the applicable Credit Party and the related Agency; and
(ii) in the case of any MSR Assets (or Deposit Accounts permitted pursuant to Article 8 hereunder with respect to Agency Collateral): (A) a Deposit Account Control Agreement for the Deposit Accounts into which all related Income shall be deposited in accordance with Section 4.06(a), reasonably acceptable to the Administrative Agent and duly executed by the related parties, and (B) in cases where the applicable Credit Party receives payments directly from the obligors on the related Mortgage Loans, an agreement with the lock box/clearing account bank into which such payments are made, pursuant to which such lock box/clearing account bank agrees to sweep all Income related to such Mortgage Loans into a Deposit Account described in clause (A) of this Section 4.01(c)(ii).
(d) Each Credit Party shall, from time to time, at its expense, execute, deliver, file and record all statements, continuation statements, amendments, specific assignments or other instruments or documents and take any other action that may be necessary, or that the Administrative Agent or the Required Lenders, may reasonably request, to create, evidence, preserve, perfect or validate the Security Interest or to enable such requesting party to exercise and enforce its rights hereunder and under the Credit Agreement with respect to any of the Collateral.
(e) 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 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 GrantorCredit Party, without the signature of any GrantorCredit Party, and naming any Grantor Credit Party or the Grantors Credit Parties as debtors and the Collateral Administrative Agent as secured party.
(df) The Security Interest is granted as security only 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 Credit Party with respect to or arising out of the Article 9 Collateral and notwithstanding anything in this Agreement or any Loan Document to the contrary, (i) each Credit Party shall remain liable to perform all of its duties and obligations under the contracts and agreements included in the Collateral to the same extent as if this Agreement had not been executed, (ii) the exercise by the Administrative Agent or any other Secured Party of any of the rights hereunder shall not release any Credit Party from any of its duties or obligations under the contracts and agreements included in the Collateral, (iii) the Administrative Agent and each other Secured Party shall not have any obligation or liability under the contracts and agreements included in the Collateral by reason of this Agreement, and shall not be obligated to perform any of the obligations or duties of any Credit Party thereunder or to take any action to collect or enforce any claim for payment assigned hereunder, and (iv) neither the Administrative Agent nor any other Secured Party shall have any liability in contract or tort for any Credit Party’s acts or omissions.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Walker & Dunlop, 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 of the its Obligations, each Grantor Pledgor hereby assigns and pledges to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, in all right, title or and interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all InventoryInventory and all other Goods not otherwise described above;
(ix) all Investment Property;
(x) Letter-all Letter of Credit Rights;
(xi) all Commercial Tort Claims described in Schedule IVClaims;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this sectionthe foregoing clauses);
(xiii) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xiv) to the extent not otherwise included, all Proceeds proceeds, Supporting Obligations and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
. 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) providedany Equity Interests in any Subsidiary of the Issuer, that notwithstanding anything herein (c) any assets whether now owned or hereafter acquired, with respect to which the Collateral and Guarantee Requirement (as such term is defined in the Credit Agreement) or the other paragraphs of Section 5.10 of the Credit Agreement as in effect on the date hereof would not be required to be satisfied by reason of Section 5.10(g) of the Credit Agreement if hereafter acquired, (d) any Letter of Credit Rights to the contraryextent any Pledgor, in no event shall is required by applicable law to apply the security interest granted hereunder attach toproceeds of a drawing of such Letter of Credit for a specified purpose, nor the terms “Article 9 Collateral” or “Pledged Stock” include (Ae) any Pledgor’s right, title or interest in any license, contract or agreement to which a Grantor such Pledgor is a party or any of its rights right, title or interests interest thereunder if and for so long as to the extent, but only to the extent, that such a grant would, under the terms of such security interest shall constitute license, contract or agreement, result in (i) the unenforceability of any right of the Grantor therein or (ii) in a breach or termination pursuant to of the terms of, or constitute a default under, or result in the abandonment, invalidation or unenforceability of, any such license, contract or agreement to which such Pledgor is a party (other than to the extent that any such term would be rendered ineffective pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law (including, without limitation, Title 11 of the United States Code) or principles of equity), ; provided, howeverthat immediately upon the ineffectiveness, that lapse or termination of any such provision, the Collateral shall include, and such Grantor shall be deemed to have granted a security interest shall attach immediately at in, all such time rights and interests as the condition causing if such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result provision had never been in any of the consequences specified in (i) effect or (iif) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets Equipment owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof Pledgor that are is subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as purchase money lien or a Capital Lease Obligation if the contract or other agreement in which such Lien is granted (or the documentation providing for such IndebtednessCapital Lease Obligation) validly prohibits or requires the consent of any person other than the Pledgors as a condition to the creation of any other Lien security interest on such assets and proceedsEquipment.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (ai) whether such Grantor Pledgor is an organization, the type of organization and any organizational identification number issued to such Grantor and Pledgor, (bii) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 as secured party.
(dc) The Security Interest is granted as security only 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.
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, including the Guarantees, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the 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 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 (collectively, the “Article 9 Collateral”):
(i) all AccountsCopyrights;
(ii) all Chattel PaperPatents;
(iii) all Deposit AccountsTrademarks;
(iv) all Documents (other than title documents relating to vehicles)Licenses;
(v) all Equipment;other Intellectual Property; and
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) to the extent not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided. Provided, that however, notwithstanding anything herein to any of the contraryother provisions herein, in no event this Agreement shall the not constitute a grant of a security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) in any contract or agreement license to which a any 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 (i) the abandonment, invalidation or unenforceability of any right right, title or interest of the any Grantor therein or therein, (ii) in a breach breach, default or termination pursuant to the terms ofthereof, or a default under, any such contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law or principles of equity) or (iii) would result in the forfeiture of the Grantors’ rights in any Trademark applications filed in the United States Patent and Trademark Office on the basis of such Grantor’s “intent-to-use” such trademark, unless and until acceptable evidence of use of the trademark has been filed with and accepted by the United States Patent and Trademark Office pursuant to Section 1(c) or Section 1(d) of the ▇▇▇▇▇▇ Act (15 U.S.C. 1051, et seq.), provided, however, to the extent that granting a lien in such Trademark application prior to such filing would adversely affect the enforceability or validity of such Trademark application; provided however that the Collateral shall include such license (and such security interest shall attach attach) immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and, and to the extent severable, shall attach immediately to any portion of such contract or agreement license that does not result in any of the consequences specified in (i) or (ii) including, without limitation, above; provided further that the exclusions referred to in this clause shall not include any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests Proceeds of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedslicense.
(cb) 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) 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, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detail, 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 (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 relatesGrantor. Each Grantor agrees to provide such information to the Collateral Agent promptly upon request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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.
(dc) The Security Interest is granted as security only 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.
Appears in 1 contract
Sources: Intellectual Property Security Agreement (Pinnacle Foods Finance LLC)
Security Interest. (a) As security for the payment or performance, as the case may be, in full and performance of the ObligationsObligations (as defined in the Security Agreement), each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and Debtor hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) inin and mortgage to Secured Party, for security purposes, all of Debtor's right, title or and interest in or in, to any and all of under the following assets and properties property, whether now existing or owned or at any time hereafter acquired by such Grantor acquired, developed or in which such Grantor now has or at any time in the future may acquire any right, title or interest arising (collectively, the “Article 9 "Intellectual Property Collateral”"):
(i) all Accountspatents and patent applications, domestic or foreign, all licenses relating to any of the foregoing and all income and royalties with respect to any licenses (including, without limitation, such patents and patent applications as described in Schedule A hereto), all rights to sue for past, present or future infringement thereof, all rights arising therefrom and pertaining thereto and all reissues, divisions, continuations, renewals, extensions and continuations-in- part thereof;
(ii) all Chattel Paperstate (including common law), federal and foreign trademarks, service marks and trade names, and applications for registration of such trademarks, service marks and trade names, all licenses relating to any of the foregoing and all income and royalties with respect to any licenses (including, without limitation, such marks, names and applications as described in Schedule B hereto), whether registered or unregistered and wherever registered, all rights to sue for past, present or future infringement or unconsented use thereof, all rights arising therefrom and pertaining thereto and all reissues, extensions and renewals thereof;
(iii) all Deposit Accountsthe entire goodwill of or associated with the businesses now or hereafter conducted by Debtor connected with and symbolized by any of the aforementioned properties and assets;
(iv) all Documents general intangibles (as defined in the UCC) and all intangible intellectual or other than title documents relating to vehicles);similar property of the Debtor of any kind or nature, associated with or arising out of any of the aforementioned properties and assets and not otherwise described above; and
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above products and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products proceeds of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;.
(b) provided, that notwithstanding anything herein to the contrary, in no event This Agreement shall the create a continuing security interest granted hereunder attach toin the Intellectual Property Collateral which shall remain in effect until terminated in accordance with Section 17 hereof.
(c) Notwithstanding the foregoing provisions of this Section 2, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 a security interest as provided herein shall constitute not extend to, and the term "Collateral" shall not include, any general intangibles of Debtor (whether owned or result in held as licensee or lessee, or otherwise), to the extent that (i) such general intangibles are not assignable or capable of being encumbered as a matter of law or under the unenforceability of any right terms of the Grantor therein license, lease or other agreement applicable thereto (ii) in a breach or termination pursuant to the terms of, or a default under, any such contract or agreement (other than but solely to the extent that any such term would restriction shall be rendered ineffective pursuant to Sections 9-406enforceable under applicable law), 9-407, 9-408 or 9-409 without the consent of the New York UCC licensor or any lessor thereof or other applicable law or principles of equity), party thereto and (ii) such consent has not been obtained; provided, however, that such the foregoing grant of security interest shall attach immediately at such time as extend to, and the condition causing such unenforceability term "Collateral" shall be remedied andinclude, (A) any general intangible which is an account receivable or a proceed of, or otherwise related to the extent severable, shall attach immediately to any portion of such contract enforcement or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitationcollection of, any proceeds account receivable, or goods which are the subject of such contract or agreementany account receivable, (B) more than 65% of the issued any and outstanding voting Equity Interests all proceeds of any Foreign Subsidiary general intangibles which are otherwise excluded to the extent that the assignment or any Equity Interests in any Person that encumbrance of such proceeds is not a wholly-owned Subsidiary whereso restricted, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by upon obtaining the consent of any Grantor on the date hereof such licensor, lessor or hereafter acquired other applicable party's consent with respect to any such otherwise excluded general intangibles, (but without obligating Debtor to obtain such consent) such general intangibles as well as any and any all proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which might have theretofore have been excluded from such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case grant of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 security interest and the Collateral Agent as secured party.
(d) The Security Interest is granted as security only 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 term "Collateral."
Appears in 1 contract
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and 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), in all right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit AccountsDocuments;
(iv) all Documents (other than title documents relating to vehicles)Equipment;
(v) all Equipment;
(vi) all General Intangibles;
(viivi) all Instruments;
(viiivii) all Inventory;
(ixviii) all Investment Property;
(xix) all Letter-of of-Credit Rights;
(x) all Commercial Tort Claims;
(xi) Commercial Tort Claims described in Schedule IV;all books and records pertaining to the Article 9 Collateral; and
(xii) all other personal property (other than leasehold interests in real property) to the extent not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
(b) provided, that notwithstanding . Notwithstanding anything herein to the contrary, in no event shall the Collateral include, and no Grantor shall be deemed to have granted a security interest granted hereunder attach toin any (I) General Intangible, nor the terms “Article 9 Collateral” Instrument, license, property right, permit or “Pledged Stock” include (A) any other 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 (ix) the abandonment, invalidation or unenforceability of any right right, title or interest of the Grantor therein therein, (y) a violation of a valid and enforceable restriction in respect of such General Intangible, Instrument, license, property right, permit or any other contract or agreement or other such rights (1) in favor of a third party or (ii2) in under any law, regulation, permit, order or decree of any Governmental Authority or (z) a breach or termination (or result in any party thereto having the right to terminate) pursuant to the terms of, or a default under, such General Intangible, Instrument, license, property right, permit or any such other contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections Section 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), ; provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability or breach or termination, as the case may be, shall be remedied and, to the extent severable, shall attach immediately to any portion of such General Intangible, Instrument, license, property right, permit or any other contract or agreement that does not result in any of the consequences specified in the immediately preceding clause (ix), (y) or (iiz) including, without limitation, any proceeds of such General Intangible, Instrument, license, property rights, permit or any other contract or agreement, ; (BII) more than 65% of the issued and outstanding voting Equity Interests of in any Foreign Subsidiary, (III) any Equity Interest in any Non-Significant Subsidiary, (IV) any Equity Interest in any Permitted Syndication Subsidiary, any Securitization Subsidiary or any Equity Interests in any Person that is not a wholly-owned Permitted Joint Venture Subsidiary where, pursuant to the organizational documents extent the pledge of the Equity Interest in such Subsidiary is prohibited by any applicable Contractual Obligation or requirement of law, (V) any related shareholders vehicle or similar agreement other asset subject to certificate of such Persontitle, (VI) any asset that requires perfection through control agreements (including, to the grant extent required in the relevant jurisdiction for deposit accounts and investment property), (VII) any minority Equity Interests, (VIII) any assets with respect to which the Collateral Agent shall reasonably determine that the cost of such creating and/or perfecting a security interest therein is excessive in relation to the benefit to the Secured Parties or lien is prohibited that the granting or prohibited without the consent perfection of the equity holders of such Person a security interest therein would violate applicable law or regulation, (IX) any assets (other than the Borrower any General Intangible, Instrument, license, property right, permit or any wholly-owned Subsidiary thereof); and (Cother contract or agreement) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to by Section 4.09(b)(46.02(c) or (n) of the Indenture Credit Agreement, to the extent and for so long as such Lien exists and the contract terms of the Indebtedness or other agreement obligations secured thereby prevent the grant of a security interest in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets hereunder and proceeds(X) in the event that a registration statement with respect to any Series of Pari Passu Debt Obligations has been filed with the SEC and is effective, solely with respect to such Series, any Equity Interests which, if part of the Collateral securing such Series, would require the Borrower to file separate financial statements for any Subsidiary with the SEC (but, for the avoidance of doubt, such Equity Interests shall at all times continue to secure the Bank Loan Obligations and all other Series to the extent provided for in this Agreement).
(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 Article 9 Collateral or any part thereof and amendments thereto that (i) indicate the Article 9 Collateral as “all assets assets” of such Grantor, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detaileffect, 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 (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. .
(c) Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereofRestatement Effective Date. 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 or any similar office in any other countryoffice) 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.
(d) The Security Interest is granted as security only 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.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Community Health 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 of the its Secured Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and permitted assigns, for the benefit of the Secured Parties, a security interest (the “Security Interest”) in, in all right, title or and interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Money and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all InventoryInventory and all other Goods not otherwise described above;
(ix) all Investment Property;
(x) Letter-of Credit Rightsall Intellectual Property;
(xi) all Commercial Tort Claims with respect to the matters described in on Schedule IVIII;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this sectionthe foregoing clauses);
(xiii) all books and recordsrecords pertaining to the Article 9 Collateral; and
(xiv) to the extent not otherwise included, all Proceeds other personal property of such Grantor, whether tangible or intangible, and all accessions to, substitutions and replacements for, and all proceeds, Supporting Obligations and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), ; provided, however, that such this Agreement shall not constitute a grant of a security interest in, and the term Article 9 Collateral shall attach immediately at such time as the condition causing such unenforceability shall be remedied andnot include, any Excluded Property. Notwithstanding anything to the extent severablecontrary in this Agreement or in the Indenture, no property of any Grantor shall attach immediately to any portion constitute Excluded Property, or otherwise be excluded from the definition of Pledged Collateral or Article 9 Collateral, if such property constitutes collateral security obligations of such contract or agreement that does not result in Grantor under any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary First Lien Priority Indebtedness or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Second Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Priority Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(cb) Each Grantor hereby irrevocably authorizes the Collateral Agent at any time and from time to time time, and irrevocably agrees to file or cause to be filed, 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, whether now owned or hereafter acquired or words of similar 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 of each applicable jurisdiction for the filing of any financing statement or amendment, including (ai) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and Grantor, (bii) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 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, whether now owned or hereafter acquired” or “all property, whether now owned or hereafter acquired” or using words of similar import. Each Grantor agrees to provide such information promptly to the Collateral Agent promptly upon requestcopies of all such filings. Each Grantor also ratifies its authorization for further authorizes the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. The Collateral Agent is further authorized file, and itself agrees to file or cause to be filed, with the United States Patent and Trademark Office or United States Copyright Office (or any successor office or any similar office in any other country) such documents as may be reasonably necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any such Grantor, and naming any such Grantor or the Grantors as debtors and the Collateral Agent as secured party.
(dc) The Security Interest is granted as security only 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.9
Appears in 1 contract
Sources: Collateral Agreement (Anywhere Real Estate Group LLC)
Security Interest. (a) As security for the payment or performance, as the case may be, in full of the Obligations, each Grantor hereby assigns and pledges to the Collateral Agent, its successors and assigns, for the benefit assigns (on behalf of the Secured Parties), and hereby grants to the Collateral Agent, its successors and assigns, for the benefit assigns (on behalf of the Secured Parties), a first-priority security interest (the “Security Interest”) in), in all right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles)Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) all Letter-of of-Credit Rights;
(xi) all Commercial Tort Claims described in Schedule IV;Claims
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above books and any property specifically excluded from any defined term used in any clause of this section);records pertaining to the Article 9 Collateral; and
(xiii) all books and records; and
(xiv) to the extent not otherwise included, all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person person with respect to any of the foregoing;.
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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, whether now owned or hereafter acquired Grantor or words of similar effect as being of an equal or lesser scope or with greater detaileffect, 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 (aA) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (bB) in the case of a financing statement filed as a fixture filing or covering Article 9 Collateral constituting minerals or the like to be extracted or timber to be cutfiling, 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 the Secured Parties) as secured party.
(dc) The Security Interest is granted as security only 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 CollateralCollateral (other than the duties expressly created hereunder).
Appears in 1 contract
Sources: Security Agreement (Alion Science & Technology Corp)
Security Interest. (a) As security for the payment or performance, as the case may be, in full and performance of the Obligations, each Grantor Debtor hereby assigns and pledges grants to the Collateral Agent, its successors and assignsSecured Party as collateral agent, for itself and for the ratable benefit of the Secured Parties, and hereby grants to the Collateral Agent, its successors and assigns, for the benefit of the Secured PartiesLenders, a security interest in all of Debtor’s right, title and interest in, to and under all of its (i) personal property, wherever located and whether now existing or owned or hereafter acquired or arising, including all accounts, chattel paper, commercial tort claims, deposit accounts, documents, equipment (including all fixtures), general intangibles, instruments, inventory, investment property, letter-of-credit rights, money, and other goods, and (ii) real property and real property interests, appurtenances, and fixtures, including rights of possession and use under leases and licenses, tenant improvements, and rights under options to lease or purchase and the like, and in the case of each of clauses (i) and (ii), all products, proceeds and supporting obligations of any and all of the foregoing (collectively, the “Security InterestCollateral”).
(b) This Agreement shall create a lien and continuing security interest in the Collateral which shall remain in effect until terminated in accordance with Section 15 hereof.
(c) Notwithstanding the foregoing provisions of this Section 2, the grant of a security interest as provided herein shall not extend to, and the term “Collateral” shall not include, either of Debtor’s deposit account numbers 3▇▇▇▇▇▇ and 3208014 with Five Star Bank located in Rancho Cordova, California or any proceeds thereof, or any general intangibles of Debtor (whether owned or held as licensee or lessee, or otherwise), to the extent that (i) such general intangibles are not assignable or capable of being encumbered as a matter of law or under the terms of the license, lease or other agreement applicable thereto (but solely to the extent that any such restriction shall be enforceable under applicable law), without the consent of the licensor or lessor thereof or other applicable party thereto and (ii) such consent has not been obtained; provided, however, that the foregoing grant of security interest shall extend to, and the term “Collateral” shall include, (A) any general intangible which is an account receivable or a proceed of, or otherwise related to the enforcement or collection of, any account receivable, or goods which are the subject of any account receivable, (B) any and all proceeds of any general intangibles which are otherwise excluded to the extent that the assignment or encumbrance of such proceeds is not so restricted, and (C) upon obtaining the consent of any such licensor, lessor or other applicable party’s consent with respect to any such otherwise excluded general intangibles, such general intangibles as well as any and all proceeds thereof that might have theretofore have been excluded from such grant of a security interest and the term “Collateral”.
(d) Anything herein to the contrary notwithstanding, in no event shall the Collateral include, and Debtor shall not be deemed to have granted a security interest in, all any of Debtor’s right, title or interest in or to any and all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
outstanding voting capital stock or other ownership interests of a Controlled Foreign Corporation (b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (iidefined below) in 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 rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 excess of the New York UCC or any other applicable law or principles of equity), provided, however, that such security interest shall attach immediately at such time as the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests power of any Foreign Subsidiary all classes of capital stock or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement other ownership interests of such Person, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof)Controlled Foreign Corporation entitled to vote; and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceeds.
(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 provided that (i) indicate immediately upon the amendment of the Internal Revenue Code of 1986, as amended, to allow the pledge of a greater percentage of the voting power of capital stock or other ownership interests in a Controlled Foreign Corporation without adverse tax consequences, the Collateral as all assets shall include, and Debtor shall be deemed to have granted a security interest in, such greater percentage of such Grantor, whether now owned capital stock or hereafter acquired or words other ownership interests of similar effect as being of an equal or lesser scope or with greater detail, each Controlled Foreign Corporation; and (ii) contain if no adverse tax consequences to Debtor shall arise or exist in connection with the information required by Article 9 pledge of any Controlled Foreign Corporation, the Uniform Commercial Collateral shall include, and Debtor shall be deemed to have granted a security interest in, such Controlled Foreign Corporation. As used herein, “Controlled Foreign Corporation” shall mean a “controlled foreign corporation” as defined in the Internal Revenue Code of each applicable jurisdiction for the filing of any financing statement or amendment1986, including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the 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 office 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 partyamended.
(d) The Security Interest is granted as security only 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.
Appears in 1 contract
Security Interest. (a) As security for the performance by the Transferor of all the terms, covenants and agreements on the part of the Transferor to be performed under this Agreement or any other Transaction Document, including the punctual payment when due of the Aggregate Capital and all Interest in respect of the Loans and all other Obligations, the Transferor hereby grants to the Administrative Agent for its benefit and the ratable benefit of the Secured Parties, a continuing security interest in all of the Transferor's right, title and interest in, to and under all of the following, whether now or performancehereafter owned, as existing or arising (collectively, the case may be"Collateral"): (i) all Pool Receivables, (ii) all Related Security with respect to such Pool Receivables, (iii) all Collections with respect to such Pool Receivables, (iv) the Lock-Boxes and Lock-Box Accounts and all 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 rights (but none of the obligations) of the Transferor under the Purchase Agreement, (vi) without duplication of the foregoing, all of its accounts, general intangibles (including payment intangibles), deposit accounts, investment property, financial assets, instruments, chattel paper and letter-of-credit rights, (vii) all supporting obligations relating to the foregoing and (viii) all proceeds of, and all amounts received or receivable under any or all of, the foregoing. Each party hereto acknowledges and agrees that the security interest and liens granted in the Collateral under and pursuant to the Original Agreement shall continue in full force and effect, and this Section 4.01(a) shall be deemed to be a continuation and reaffirmation, and not a replacement or novation, of the Obligations, each Grantor hereby assigns security interest and pledges liens granted in the Collateral under and pursuant to the Collateral Agent, its successors and assigns, Original Agreement.
(b) The Administrative Agent (for the benefit of the Secured Parties) shall have, with respect to all the Collateral, and hereby grants in addition to all the other rights and remedies available to the Collateral Agent, its successors and assigns, Administrative Agent (for the benefit of the Secured Parties), all the rights and remedies of a secured party under any applicable UCC. Each of the Transferor and the Administrative Agent hereby authorizes the filing of financing statements and financing statement amendments (including continuation statements) in each jurisdiction the Administrative Agent deems necessary and appropriate to perfect and maintain the perfection of the security interest of the Administrative Agent (for the “Security Interest”benefit of the Secured Parties) inin the Collateral. Such financing statements may describe the collateral covered thereby, all right(i) in the case of any financing statement against the Transferor, title or interest in or to any and as "all of the following assets and properties 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 (collectively, the “Article 9 Collateral”):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) Letter-of Credit Rights;
(xi) Commercial Tort Claims described in Schedule IV;
(xii) all other debtor's personal property (other than leasehold interests in real property) not otherwise described above (except for any property specifically excluded from any clause in this section above or assets" or words to that effect, and any property specifically excluded from any defined term used in any clause of this section);
(xiii) all books and records; and
(xiv) all Proceeds and products of any and all Supporting Obligations of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
(b) provided, that notwithstanding anything herein to the contrary, in no event shall the security interest granted hereunder attach to, nor the terms “Article 9 Collateral” or “Pledged Stock” include (A) 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 (i) the unenforceability of any right of the Grantor therein or (ii) in a breach the case of any financing statement against the Seller or termination pursuant to any Originator, as set forth in the terms ofPurchase Agreement or the Originator Sale Agreement, as applicable, or a default underin an Exhibit or Annex thereto, any such contract or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406in each case, 9-407, 9-408 or 9-409 of the New York UCC or any other applicable law or principles of equity), provided, however, notwithstanding that such security interest shall attach immediately at such time as wording may be broader in scope than the condition causing such unenforceability shall be remedied and, to the extent severable, shall attach immediately to any portion of such contract or agreement that does not result collateral described in any of the consequences specified in (i) or (ii) including, without limitation, any proceeds of such contract or agreement, (B) more than 65% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary or any Equity Interests in any Person that is not a wholly-owned Subsidiary where, pursuant to the organizational documents or any related shareholders or similar agreement of such Personthis Agreement, the grant of such security interest or lien is prohibited or prohibited without the consent of the equity holders of such Person (other than the Borrower or any wholly-owned Subsidiary thereof); and (C) assets owned by any Grantor on the date hereof or hereafter acquired and any proceeds thereof that are subject to a Lien securing Indebtedness permitted to be incurred pursuant to Section 4.09(b)(4) of the Indenture to the extent and for so long as the contract or other agreement in which such Lien is granted (Purchase Agreement or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such assets and proceedsOriginator Sale Agreement, as applicable.
(c) Each Grantor Without limiting the generality of Section 4.01(b), each of the Transferor and the Administrative Agent hereby irrevocably authorizes the Collateral Agent at any time filing of, and from time the Transferor shall cause 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 be filed: (i) indicate financing statement amendments to (X) financing statement #0031397 filed against the Collateral Transferor with the Secretary of State of the State of Delaware and (Y) financing statement #200000118812 filed against Tech Data with the Secretary of State of the State of Florida (the "Existing Financing Statements"), amending collateral descriptions to reflect the addition of AVT TS as all assets an Originator (in a manner consistent with Section 4.01(b)) and amending the identity of such Grantor, whether now owned or hereafter acquired or words the secured party to reflect the appointment of similar effect Scotia Bank as being the Administrative Agent for the benefit of an equal or lesser scope or with greater detail, the Secured Parties and (ii) contain on the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdiction for the filing of any financing statement Amendment Date (or amendmentwithin two (2) Business Days thereafter), including (a) whether such Grantor is an organization, the type of organization and any organizational identification number issued to such Grantor and (b) in the case of a financing statement filed as a fixture filing 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 request. Each Grantor also ratifies its authorization for the Collateral Agent to file in any relevant jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. The Collateral Agent is further authorized to file against AVT TS with the United States Patent Secretary of State of the State of Delaware, against Tech Data with the Secretary of State of the State of Florida and Trademark Office against the Transferor with the Secretary of State of the State of Delaware, each identifying the Administrative Agent for the benefit of the Secured Parties as the secured party or United States Copyright Office secured party assignee and identifying the applicable collateral in a manner consistent with Section 4.01(b) (such financing statements, the "Amendment Financing Statements"). For so long as this Agreement is in effect or any successor office Obligations remain outstanding, the Transferor shall cause the Existing Financing Statements and the Amendment Financing Statements to be continued on such date or any similar office in any other country) such documents dates as may be necessary or advisable for to continue such financing statements under the purpose of perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by each Grantor, without the signature of any Grantorapplicable UCC, and naming any Grantor shall not authorize either the Existing Financing Statements or the Grantors as debtors and the Collateral Agent as secured partyAmendment Financing Statements to be terminated.
(d) The Security Interest is granted as security only authorizations set forth in Sections 4.01(b) and shall not subject (c) above are intended to satisfy all requirements for the Collateral Agent or any other Secured Party to, or authorization of filing the financing statements described in any way alter or modify, any obligation or liability such sections under Article 9 of any Grantor with respect to or arising out applicable enactment of the Article 9 CollateralUCC, including, without limitation, Section 9-509 thereof.
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Sources: Transfer and Administration Agreement (Tech Data Corp)