Collateral. Subject to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising: (i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto; (ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto; (iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral; (iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and (v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 8 contracts
Sources: Revolving Credit Agreement (MN8 Energy, Inc.), Revolving Credit Agreement (MN8 Energy, Inc.), Revolving Credit Agreement (MN8 Energy, Inc.)
Collateral. Subject As collateral security for the prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the Obligations, each Debtor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment Secured Party a Lien on and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests to all of such Debtor’s right, title and interest in the followingfollowing properties and assets of such Debtor, whether now owned by such Debtor or hereafter acquired and whether now existing or hereafter coming into existence and wherever located (all being collectively referred to herein as “Collateral”):
(a) all Instruments, together with all payments thereon or thereunder:
(b) all Accounts;
(c) all Inventory;
(d) all General Intangibles (including payment intangibles (as defined in the UCC) and Software);
(e) all Equipment;
(f) all Documents;
(g) all Contracts;
(h) all Goods;
(i) all Investment Property, including without limitation all equity interests now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on by such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoDebtor;
(iij) all Deposit Accounts, including, without limitation, the balance from time to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral time in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of all bank accounts maintained by such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoDebtor;
(iiik) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such CollateralCommercial Tort Claims specified on Schedule VII;
(ivl) each Collateral Accountall Trademarks, including but not limited Patents and Copyrights;
(m) all books and records pertaining to any and all funds and financial assets on deposit therein or credited theretothe other Collateral; and
(vn) any all other tangible and all proceeds intangible property of any of the foregoing Collateral such Debtor, including, without limitation, all interests in real property, Proceeds, tort claims, products, accessions, rents, profits, income, benefits, substitutions, additions and replacements of the records of the Guarantor concerning and to any of the foregoing Collateral; excluding property of such Debtor described in the preceding clauses of this Section 3 (A) including, without limitation, any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent usedproceeds of insurance thereon, pursuant to the terms of the Guarantor’s Governing Documentsinsurance claims and all rights, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to claims and benefits against any such accountPerson relating thereto), other rights to make payments not otherwise included in the foregoing, and all books, correspondence, files, records, invoices and other papers, including without limitation all tapes, cards, computer runs, computer programs, computer files and other papers, documents and records in the possession or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds control of such withdrawn funds (the items in (A) and (B)Debtor, collectively “Excluded Proceeds”)any computer bureau or service company from time to time acting for such Debtor. Notwithstanding the foregoing or anything to the contrary contained herein or in this Credit Agreement any Transaction Document, in no event shall the security interest granted herein or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited therein attach to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinAssets.
Appears in 8 contracts
Sources: Security Agreement, Security Agreement (Medite Cancer Diagnostics, Inc.), Security Agreement (Medite Cancer Diagnostics, Inc.)
Collateral. Subject to (a) The Borrower, as security for the terms of the applicable Collateral Documents, to secure the prompt payment and performance of the Secured Obligations hereunderwhen due, pursuant hereby assigns, conveys, transfers, delivers and sets over to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantIssuing Lender, and shall pledge and/or assign by way of security, grants to the Administrative Agent, for the benefit of each Issuing Lender a Lien on and a security interest in all assets of the Secured PartiesBorrower other than its books and records and its right, as applicable, a first priority, security title and interest and ▇▇▇▇ in and on its interests in the following, whether (now owned existing or hereafter acquired or arising:) in, to and under the Regulatory Account and the Administrative Account, including the Borrower’s right, title and interest (now existing or hereafter acquired or arising) in, to and under the following (collectively, the “Collateral”):
(i) any the Borrower’s interest, if any, in the Reinsurance Trust Account; provided, that such Lien and security interest is subject in all Unfunded Capital Commitments cases and in every respect to the rights of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on Reinsurance Trustee in such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretointerest;
(ii) the Surplus Account, and all Cash, securities, Instruments and other property held in the Surplus Account from time to time, and all certificates and Instruments, if any, from time to time representing the Surplus Account or any property therein. Notwithstanding the status of the Surplus Account and financial assets as Collateral, the Surplus Account and such assets shall remain available to make payments in the priority and to the recipients identified pursuant to the Priority of Payments. In addition, the Issuing Lender agrees not to issue any Notice of Exclusive Control (as defined in the Securities Account Control Agreement) unless an Event of Default has occurred and is continuing. The Issuing Lender hereby authorizes any disposition of property from the Surplus Account free of any security interest if, and only to the extent relating to that, such disposition is made, and the Unfunded Capital Commitments proceeds are applied, in accordance with the Priority of the Investors constituting Collateral in clause Payments;
(iiii) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Lettersall rights, if any, of such Investors and the Borrower in (zA) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toCash, in each case of clauses (x)securities, (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security Instruments and other property with respect held or deemed to such Collateral;
(iv) each Collateral Account, including but not limited to be held in any and all funds and financial assets on deposit therein express or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, constructive trust established pursuant to the terms of the Guarantor’s Governing Documents, Reinsurance Agreement from time to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreementtime, and (B) the proceeds of such withdrawn funds (the items in (A) all certificates and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX InsidersInstruments, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include from time to time representing any Portfolio Investment, any Portfolio Assets such express or constructive trust or any Excluded Proceedsproperty therein; provided, (iii) that such Lien and security interest is subject in all cases and in every respect to the term “Collateral” shall not include any collateral posted or received rights of the Ceding Company in connection with the Swap Agreements, such rights;
(iv) any and all of the Collateral following, whether now existing or hereafter arising and wheresoever the same may be subject to Permitted Lienslocated: all rights of the Borrower under the Transaction Documents, accounts (other than the Regulatory Account and the Reinsurance Trust Account), chattel paper, deposit accounts, documents, equipment, general intangibles, goods, instruments, inventory, investment property, letters of credit, letter-of-credit rights, payment intangibles, securities accounts and supporting obligations;
(v) a all other property or rights delivered or assigned by the Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition on its behalf to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject Issuing Lender from time to control agreements time under this Agreement or other restrictions and otherwise, to secure or guarantee payment of the Secured Obligations; and
(vi) to the Administrative Agent extent not covered above, all products and proceeds of, and all dividends, collections, earnings, accruals, and other payments with respect to, any or all of the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 6 contracts
Sources: Reimbursement Agreement (Protective Life Insurance Co), Reimbursement Agreement (Protective Life Corp), Reimbursement Agreement (Protective Life Insurance Co)
Collateral. Subject Except for any items referred to on Schedule 9.13(b):
(a) All documents and instruments, including Uniform Commercial Code or other applicable personal property and financing statements, reasonably requested by the Collateral Agent to be filed, registered or recorded to create the Liens intended to be created by any Security Document and perfect such Liens to the terms extent required by, and with the priority required by, such Security Document shall have been delivered to the Collateral Agent for filing, registration or recording and none of the applicable Collateral Documentsshall be subject to any other pledges, to secure the payment and performance security interests or mortgages, except for Liens permitted under Section 10.2.
(b) All Stock of the Obligations hereunderBorrower and all Stock of each Restricted Subsidiary of the Borrower directly or indirectly owned by the Borrower or any Subsidiary Guarantor, in each case as of the Closing Date, shall have been pledged pursuant to a the Pledge Agreement (except that such Credit Parties shall not be required to pledge any Excluded Stock) and the Collateral Account PledgeAgent shall have received all certificates, a Security if any, representing such securities pledged under the Pledge Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge accompanied by instruments of transfer and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ undated powers endorsed in and on its interests in the following, whether now owned or hereafter acquired or arising:blank.
(i) any and Except with respect to intercompany Indebtedness, all Unfunded Capital Commitments evidences of the Investors, whether now or hereafter committed, including but not limited Indebtedness for borrowed money in a principal amount in excess of $10,000,000 (individually) that is owing to the right Borrower or any Subsidiary Guarantor shall be evidenced by a promissory note and shall have been pledged pursuant to draw down Investor Capital Contributions on the Pledge Agreement, and the Collateral Agent shall have received all such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls promissory notes, together with undated instruments of transfer with respect thereto;thereto endorsed in blank.
(ii) to the extent relating to the Unfunded Capital Commitments All Indebtedness of the Investors constituting Collateral in clause (i) aboveBorrower and each of its Restricted Subsidiaries that is owing to any Credit Party shall be evidenced by the Intercompany Note, (x) which shall be executed and delivered by the Constituent Documents, (y) the Subscription Agreements Borrower and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral Restricted Subsidiaries and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn shall have been pledged pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Pledge Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may Agent shall have received such Intercompany Note, together with undated instruments of transfer with respect thereto endorsed in blank.
(d) The Guarantee shall be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” full force and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereineffect.
Appears in 6 contracts
Sources: Credit Agreement (Samson Resources Corp), Credit Agreement, Credit Agreement (Samson Resources Corp)
Collateral. Subject to To secure performance by the terms Borrower Parties of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, Obligations: (i) pursuant to a the Collateral Account Pledge, a Security AgreementPledges and Account Control Agreements (if applicable), the related financing statements Loan Parties will grant to the Administrative Agent, for the benefit of each of the Lenders, an exclusive, perfected, first priority security interest and lien in and to each Collateral Account and all of the other related documentsproceeds thereof as more fully described therein; and (ii) pursuant to the Security Agreements, to the extent of their respective interests therein, the Initial Borrower, the Guarantor shall grant, and shall pledge and/or assign by way of security, the Guarantor General Partner will grant to the Administrative Agent, for the benefit of each of the Secured Parties, as applicablean exclusive, a perfected, first priority, priority security interest and ▇▇▇▇ in and Lien on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and to all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained collateral described therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, the Capital Calls, Capital Commitments, Unfunded Commitments and Capital Contributions, including, without limitation, any rights to make Capital Calls, receive payment of Capital Commitments and enforce the payment thereof and to enforce the payment thereof or any guarantees thereof now existing or hereafter arising (the collateral in clauses (i)-(ii) of this Section 5.01 being, collectively, the “Collateral”). For the avoidance of doubt, the Obligations of each Borrower shall be cross-secured by the Unfunded Commitments of all Borrowers and the Guarantor. In order to secure further the payment and performance of the records Obligations and to effect and facilitate the Lenders’ right of setoff, each Loan Party hereby irrevocably appoints the Guarantor concerning Administrative Agent as subscription agent and the sole party entitled in the name of any Loan Party, upon the occurrence and during the continuance of an Event of Default, to make any Capital Calls on the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, Investors pursuant to the terms of each of the Guarantor’s Governing DocumentsAgreements, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit AgreementSecurity Agreements, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)Subscription Agreements. Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other contained herein, upon the occurrence and during the continuation of an Event of Default, no Loan Document Party shall make a Capital Call unless such Capital Call is (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited pursuant to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests last sentence of the SOX Insiders, if any, unless so elected by the Guarantor in its discretionSection 5.02(d), (ii) otherwise with the term “Collateral” shall not include any Portfolio Investmentprior written consent of Administrative Agent, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) at the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinAgent’s request.
Appears in 5 contracts
Sources: Credit Agreement (Overland Advantage), Revolving Credit Agreement (Overland Advantage), Revolving Credit Agreement (Overland Advantage)
Collateral. Subject In addition to, and not in substitution for, any Property delivered, conveyed, transferred or assigned to you under any Loan Document as security for any or all of Applicant's obligations and liabilities to you at any time existing under or in connection with any L/C Document or any Loan Document, Applicant agrees to deliver, convey, transfer and assign to you on demand, as security, Property of a value and character satisfactory to you, (i) if you at any time reasonably feel insecure about Applicant's ability or willingness to repay any amounts which you have paid or may pay in the terms future on any Demand or in honoring any other of your obligations under or in connection with any Credit, or (ii) without limiting the generality of the applicable Collateral Documentsforegoing, to secure if any temporary or permanent restraining order, preliminary or permanent injunction, or any other pretrial or permanent injunctive or similar relief is obtained restraining, prohibiting or enjoining you, any of your correspondents, or any advising, confirming, negotiating, paying or other bank from paying or negotiating any Demand or honoring any other obligation under or in connection with any Credit. Applicant agrees that the payment and performance receipt by you or any of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way your agents or correspondents at any time of any kind of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, cash, shall not be deemed a waiver of any of your rights or powers under this Agreement. Applicant agrees to sign and deliver to you on demand, all such deeds of trust, security agreements, financing statements and other documents as you shall at any time request which are necessary or desirable (in your sole opinion) to grant to you an effective and perfected security interest in and to any or all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant . Applicant agrees to pay all filing and recording fees related to the Credit Agreement if deposited or credited perfection of any security interest granted to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors you in accordance with the terms hereof this Section. Applicant hereby agrees that any or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds all of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” held and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, disposed of as provided thereinin this Agreement by you. Upon any transfer, sale, delivery, surrender or endorsement of any Document or Property which is or was part of the Collateral, Applicant will indemnify and hold you and your agents and correspondents harmless from and against each and every claim, demand, action or suit which may arise against you or any of your agents or correspondents by reason of such transfer, sale, delivery, surrender or endorsement.
Appears in 5 contracts
Sources: Standby Letter of Credit Agreement, Standby Letter of Credit Agreement (Handspring Inc), Standby Letter of Credit Agreement (Handspring Inc)
Collateral. Subject With respect to the terms Collateral at any time prior to the release of the applicable Lien on the Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof of the Security Agreement: (i) any Significant Collateral Security Failure Event with respect to the United States exists and is continuing; (ii) any Significant Collateral Security Failure Event with respect to two Material Foreign Jurisdictions exists and is continuing; or for (c) the Borrower or Dart asserts, in any pleading in any court of competent jurisdiction, that any such security interest is invalid or unenforceable and, in the case of any such assertion by Dart, the Borrower fails to cause Dart to rescind such assertions within 10 days after the Borrower has actual knowledge of such assertions; provided that the Borrower’s or Dart’s assertion that a security interest is invalid or unenforceable is not based on a change of law in the jurisdiction that results in the jurisdiction not permitting the granting, recordation or perfection of security interests in the Collateral; then, and in every such event (other purpose permitted under than an event with respect to the Guarantor’s Governing Documents Borrowers described in clause (f) of this Section 7.01), and this Credit Agreementat any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrowers, take either or both of the following actions, at the same or different times: (i) terminate the Revolving Commitments, and thereupon the Revolving Commitments shall terminate immediately, and (Bii) declare the proceeds of such withdrawn funds Loans then outstanding to be due and payable in whole (the items or in (A) part, in which case any principal not so declared to be due and (Bpayable may thereafter be declared to be due and payable), collectively “Excluded Proceeds”). Notwithstanding and thereupon the foregoing principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or anything other notice of any kind, all of which are hereby waived by the Borrowers; and in case of any event with respect to the contrary Borrowers described in clause (f) of this Credit Agreement or any other Loan Document (i) Section 7.01, the term “Collateral” Revolving Commitments shall not include automatically terminate and the Unfunded Capital Commitments principal of the SOX InsidersLoans then outstanding, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any together with accrued interest thereon and all fees and other interests obligations of the SOX InsidersBorrowers accrued hereunder, if anyshall automatically become due and payable, unless so elected without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinBorrowers.
Appears in 5 contracts
Sources: Credit Agreement (Tupperware Brands Corp), Credit Agreement (Tupperware Brands Corp), Credit Agreement (Tupperware Brands Corp)
Collateral. Subject to the terms The Collateral under this Security Agreement includes all of the applicable Collateral Documents, to secure the payment and performance following assets of the Obligations hereunderDebtor which are or are to be installed, pursuant attached, and/or used upon or in connection with, relate to a Collateral Account Pledge, a Security Agreementor arise from (including without limitation the ownership and/or operation of) the Project, the related financing statements and Gaming Facility Site and/or the other related documentsProject Facilities, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired (collectively all of the following property and similar or arising:after-acquired property under this Section 2 being hereinafter referred to as the "Collateral").
(a) any Furnishings and Equipment (as defined in the Management Contract); and each of the foregoing whether now owned or hereafter at any time acquired by Debtor and wherever located, and includes all replacements, additions, parts, appurtenances, accessions, substitutions, repairs, proceeds, products, offspring, rents and profits, license rights and software attached or relating thereto or therefrom, and all documents, records, ledger sheets and files of Debtor relating thereto; together further with all proceeds of any such Collateral, including, without limitation (i) any and all Unfunded Capital Commitments of the Investors, whether whatever is now or hereafter committedreceivable or received by Debtor upon the sale, including but not limited to the right to draw down Investor Capital Contributions on exchange, collection or other disposition of any item of Collateral, whether voluntary or involuntary, whether such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
proceeds constitute equipment, intangibles, or other assets; (ii) to the extent relating to the Unfunded Capital Commitments any such items which are now or hereafter acquired by Debtor with any proceeds of the Investors constituting Collateral in clause hereunder; (iiii) aboveall warehouse receipts, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, bills of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants lading and other agreements documents of title now or hereafter covering such Investors or guarantors contained therein, any goods; and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind insurance proceeds or description to the extent evidencing or supporting obligations any payments under any indemnity, warranty or guaranty now or hereafter payable by reason of the foregoing Collateral and any and all security and other property loss or damage or otherwise with respect to such Collateral;
(iv) any item of Collateral or any proceeds thereof. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Management Contract and each category of Collateral Accountthat is defined under the UCC shall have the meanings set forth therein. As they are used in this Agreement, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of listed below shall have the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.following meanings:
Appears in 5 contracts
Sources: Security Agreement (Lakes Entertainment Inc), Security Agreement (Lakes Entertainment Inc), Security Agreement (Lakes Entertainment Inc)
Collateral. Subject As collateral security for the prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the obligations due the Secured Party under the Notes, each Debtor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative AgentSecured Party, for the benefit of itself and each of the Secured Parties, as applicablePurchaser, a first priority, Lien on and security interest and ▇▇▇▇ in and on its interests to all of such Debtor’s right, title and interest in the followingfollowing properties and assets of such Debtor, whether now owned by such Debtor or hereafter acquired and whether now existing or hereafter coming into existence and wherever located (all being collectively referred to herein as “Collateral”):
(a) all Instruments, together with all payments thereon or thereunder:
(b) all Accounts;
(c) all Inventory;
(d) all General Intangibles (including payment intangibles (as defined in the UCC) and Software);
(e) all Equipment;
(f) all Documents;
(g) all Contracts;
(h) all Goods;
(i) all Investment Property, including without limitation all equity interests now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on by such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoDebtor;
(iij) all Deposit Accounts, including, without limitation, the balance from time to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral time in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of all bank accounts maintained by such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoDebtor;
(iiik) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such CollateralCommercial Tort Claims specified on Schedule VII;
(ivl) each Collateral Accountall Trademarks, including but not limited Patents and Copyrights;
(m) all books and records pertaining to any and all funds and financial assets on deposit therein or credited theretothe other Collateral; and
(vn) any all other tangible and all proceeds intangible property of any of the foregoing Collateral such Debtor, including, without limitation, all interests in real property, Proceeds, tort claims, products, accessions, rents, profits, income, benefits, substitutions, additions and replacements of the records of the Guarantor concerning and to any of the foregoing Collateral; excluding property of such Debtor described in the preceding clauses of this Section 3 (A) including, without limitation, any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent usedproceeds of insurance thereon, pursuant to the terms of the Guarantor’s Governing Documentsinsurance claims and all rights, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to claims and benefits against any such accountPerson relating thereto), other rights to make payments not otherwise included in the foregoing, and all books, correspondence, files, records, invoices and other papers, including without limitation all tapes, cards, computer runs, computer programs, computer files and other papers, documents and records in the possession or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds control of such withdrawn funds (the items in (A) and (B)Debtor, collectively “Excluded Proceeds”)any computer bureau or service company from time to time acting for such Debtor. Notwithstanding the foregoing or anything to the contrary contained herein or in this Credit Agreement any Transaction Document, in no event shall the security interest granted herein or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited therein attach to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinAssets.
Appears in 4 contracts
Sources: Security Agreement (OncBioMune Pharmaceuticals, Inc), Security Agreement (OncBioMune Pharmaceuticals, Inc), Security Agreement (OncBioMune Pharmaceuticals, Inc)
Collateral. Subject In addition to, and not in substitution for, any Property delivered, conveyed, transferred or assigned to you under any Loan Document as security for any or all of Applicant's obligations and liabilities to you at any time existing under or in connection with any L/C Document or any Loan Document, Applicant grants to you a security interest in and to the terms following Collateral, whether or not any such Collateral is in your possession or control or the possession or control of the applicable Collateral Documentsyour agents or correspondents or in transit to, or set apart for, you or your agents or correspondents, until such time as all Applicant's obligations and liabilities to secure the payment you at any time existing under or in connection with each L/C Document and performance of the Obligations hereundereach Loan Document have been fully paid and discharged, pursuant to a Collateral Account Pledgeall as security for such obligations and liabilities, a Security Agreement(a) all Applicant's property, the related financing statements claims, demands, right, title and the other related documents, the Guarantor shall grant, interest in and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit balance of each of the Secured PartiesApplicant's deposit accounts with you now or at any time hereafter existing, as applicableand all evidences of such deposit accounts, a first priority(b) all Property belonging to Applicant or in which it may have an interest, security interest and ▇▇▇▇ now or at any time hereafter delivered, conveyed, transferred, assigned, pledged or paid to you or your agents or correspondents in and on its interests in the followingany manner whatsoever, whether now owned as security or hereafter acquired for safekeeping or arising:
(i) any and all Unfunded Capital Commitments of the Investorsotherwise, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (items received for collection or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreementtransmission, and (B) the proceeds of such withdrawn funds (the items items, whether or not such Property is in (A) whole or in part released to Applicant on trust or bailee receipt or otherwise, and (B)c) where Applicant is more than one person or entity, collectively “Excluded Proceeds”)all right, title and interest of each of Applicants in and to all the Property which any of Applicants may now or hereafter obtain as security for the obligations of any one or more of Applicants to one or more of the others of Applicants arising under or in connection with the transaction to which any Credit relates. Notwithstanding the foregoing Further, in addition to, and not in substitution for, any Property delivered, conveyed, transferred or anything assigned to the contrary you under any Loan Document as security for any or all of Applicant's obligations and liabilities to you at any time existing under or in this Credit Agreement connection with any L/C Document or any other Loan Document Document, Applicant agrees to deliver, convey, transfer and assign to you on demand, as security, Property of a value and character satisfactory to you, (i) if you at any time feel insecure about Applicant's ability or willingness to repay any amounts which you have paid or may pay in the term “Collateral” shall not include future on any Demand or in honoring any other of your obligations under or in connection with any Credit, or (ii) without limiting the Unfunded Capital Commitments generality of the SOX Insidersforegoing, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitmentsif any temporary or permanent restraining order, preliminary or permanent injunction, or any other interests of the SOX Insiderspretrial or permanent injunctive or similar relief is obtained restraining, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investmentprohibiting or enjoining you, any Portfolio Assets of your correspondents, or any Excluded Proceedsadvising, (iii) the term “Collateral” shall not include confirming, negotiating, paying or other bank from paying or negotiating any collateral posted Demand or received honoring any other obligation under or in connection with any Credit. Applicant agrees that the Swap Agreementsreceipt by you or any of your agents or correspondents at any time of any kind of security, including, without limitation, cash, shall not be deemed a waiver of any of your rights or powers under this Agreement. Applicant agrees to sign and deliver to you on demand, all such deeds of trust, security agreements, financing statements and other documents as you shall at any time request which are necessary or desirable (ivin your sole opinion) to grant to you an effective and perfected security interest in and to any or all of the Collateral. Applicant agrees to pay all filing and recording fees related to the perfection of any security interest granted to you in accordance with this Section. Applicant hereby agrees that any or all of the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” held and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, disposed of as provided thereinin this Agreement by you. Upon any transfer, sale, delivery, surrender or endorsement of any Document or Property which is or was part of the Collateral, Applicant will indemnify and hold you and your agents and correspondents harmless from and against each and every claim, demand, action or suit which may arise against you or any of your agents or correspondents by reason of such transfer, sale, delivery, surrender or endorsement.
Appears in 4 contracts
Sources: Standby Letter of Credit Agreement (Miscor Group, Ltd.), Standby Letter of Credit Agreement (Plantronics Inc /Ca/), Secured Credit Agreement (First Banks, Inc)
Collateral. Subject (a) The parties hereto intend that this Agreement constitute a security agreement and the transactions effected hereby constitute secured loans by the Lenders to the terms of Borrower under Applicable Law. As collateral security for the applicable Collateral Documentsprompt, to secure the complete and indefeasible payment and performance in full when due, whether by lapse of time, acceleration or otherwise, of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, Borrower hereby grants to the Administrative Agent, as agent for the benefit of each of the Secured Parties, as applicable, a first priority, lien on and security interest in all of the Borrower’s right, title and ▇▇▇▇ in interest in, to and on its interests in under the following, whether now existing or owned or hereafter arising or acquired or arising:by the Borrower (collectively, the “Collateral”):
(i) any the Receivables and all Unfunded Capital Commitments of the Investorsrelated Contracts, whether now or hereafter committed, (including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors service the Receivables in connection therewith), and to issue Investor Capital Calls any accounts or obligations evidenced thereby, any guarantee thereof, all Collections and all monies due (including any payments made under any guarantee or similar credit enhancement with respect theretoto any such Receivables) or to become due or received by any Person in payment of any of the foregoing on or after the related Cutoff Date;
(ii) the 2017-1A SUBI, the 2017-1A SUBI Certificate and any related rights, authority, powers and privileges of the holder and the beneficiary thereof under the related Trust Documents, including a beneficial interest in the North Carolina Receivables from time to time allocated to the extent relating 2017-1A SUBI, including all monies due and to become due with respect thereto and all proceeds thereof, and all payments and distributions thereunder of whatever kind or character and whether in cash or other property, at any time made or distributable to the Unfunded Capital Commitments Borrower thereunder or in respect thereof, whether due or to become due, including, without limitation, the immediate and continuing right of the Investors constituting Collateral in clause Borrower to receive and collect all amounts payable to the holder thereof, and all of the Borrower’s rights, remedies, powers, interests and privileges under the Trust Documents (i) abovewhether arising pursuant to the terms thereof or otherwise available to Borrower), (x) including, without limitation, the Constituent right to enforce the Trust Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) to give or withhold any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toconsents, in each case of clauses (x)requests, (y) and (z)notices, any directions, approvals or waivers thereunder and all representationsamounts due and to become due thereunder, warranties, covenants and other agreements of such Investors whether payable as indemnities or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretodamages for breach thereof;
(iii) any each First Tier Purchase Agreement and all agreements, instruments remedies thereunder and other documents of every kind or description the assignment to the extent evidencing Administrative Agent of all UCC financing statements filed by Regional Management against each Originator under or supporting obligations under any of in connection with the foregoing Collateral and any and all security and other property with respect to such CollateralFirst Tier Purchase Agreement;
(iv) each Collateral Accountthe Second Tier Purchase Agreement and all remedies thereunder and the assignment to the Administrative Agent of all UCC financing statements filed by the Borrower against Regional Management under or in connection with the Second Tier Purchase Agreement;
(v) the Account Collateral;
(vi) all Liquidation Proceeds;
(vii) all Hedge Collateral;
(viii) all Receivable Files, Servicer Files and the Schedule of Receivables, and the documents, agreements and instruments included in the Receivable Files and Servicer Files, including but not limited rights of recourse of the Borrower against the related Originators and Regional Management;
(ix) all Records, documents and writings evidencing or related to any the Receivables or the Contracts;
(x) all guaranties, indemnities, warranties, insurance (and proceeds and premium refunds thereof), payments and other agreements or arrangements of whatever character from time to time supporting or securing payment of the Receivables, whether pursuant to the related Contracts or otherwise;
(xi) all funds security interests, Liens, guaranties and financial assets on other encumbrances in favor of or assigned or transferred to the Borrower in and to the Receivables;
(xii) all deposit therein or credited theretoaccounts, monies, deposits, funds, accounts and instruments relating to the foregoing; and
(vxiii) any all income, products, accessions and all proceeds of the foregoing.
(b) The grant under this Section does not constitute and is not intended to result in a creation or an assumption by any Agent or any of the foregoing Collateral including, without limitation, Secured Parties of any obligation of the Borrower or any other Person in connection with any or all of the records of the Guarantor concerning Collateral or under any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (agreement or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)instrument relating thereto. Notwithstanding the foregoing or anything Anything herein to the contrary in this Credit Agreement or any other Loan Document notwithstanding, (i) the term “Collateral” Borrower shall not include remain liable under the Unfunded Capital Commitments of the SOX Insiders, including but not limited Contracts to the right extent set forth therein to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests perform all of its duties and obligations thereunder to the SOX Insiders, same extent as if any, unless so elected by the Guarantor in its discretionthis Agreement had not been executed, (ii) the term “Collateral” exercise by the Administrative Agent of any of its rights in the Collateral shall not include release the Borrower from any Portfolio Investment, any Portfolio Assets of its duties or any Excluded Proceeds, obligations under the Collateral and (iii) the term “Collateral” no Agent or any Secured Party shall not include have any collateral posted obligations or received in connection with the Swap Agreements, (iv) liability under the Collateral may by reason of this Agreement, nor shall any Agent or any Secured Party be subject obligated to Permitted Liensperform any of the obligations or duties of the Borrower thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.
(c) Notwithstanding the foregoing grant of security interest, no account, instrument, chattel paper or other obligation or property of any kind due from, owned by or belonging to a Sanctioned Target shall be Collateral.
(vd) a Each of the Borrower and the Servicer represents and warrants as to itself that each remittance of Collections by the Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition Servicer to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent or any Lender under this Agreement will have been (i) in payment of a debt incurred by the Borrower in the ordinary course of business or financial affairs of the Borrower and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except Servicer and (ii) made in connection with any Swap Agreement, the ordinary course of business or financial affairs of the Borrower and the Servicer or as provided thereinrequired under the Basic Documents.
Appears in 4 contracts
Sources: Omnibus Amendment (Regional Management Corp.), Credit Agreement (Regional Management Corp.), Credit Agreement (Regional Management Corp.)
Collateral. Subject to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, As collateral security for the benefit of each prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the Secured PartiesObligations, the Company hereby pledges, grants, assigns, hypothecates and transfers to the Agent on behalf of the Purchasers as applicablehereinafter provided, a first priority, security interest and ▇▇▇▇ in and on its interests in Lien upon all of the followingCompany’s right, title and interest in, to and under all personal property and other assets of the Company, whether now owned or hereafter acquired by or arising:
(i) any and all Unfunded Capital Commitments arising in favor of the InvestorsCompany, whether now existing or hereafter committedcoming into existence, whether owned or consigned by or to the Company, or leased from or to the Company and regardless of wherever located, except for the Excluded Collateral (all being collectively referred to herein as “Collateral”) including:
a. the Company’s direct or indirect ownership interest in the respective shares of capital stock of the Issuers and all other shares of capital stock of whatever class of the Issuers, now or hereafter owned by the Company, together with in each case the certificates evidencing the same (collectively, the “Pledged Stock”);
b. all shares, securities, moneys or property representing a dividend on any of the Pledged Stock, or representing a distribution or return of capital upon or in respect of the Pledged Stock, or resulting from a split-up, revision, reclassification or other like change of the Pledged Stock or otherwise received in exchange therefor, and any subscription warrants, rights or options issued to the holders of, or otherwise in respect of, the Pledged Stock;
c. without affecting the obligations of the Company under any provision prohibiting such action hereunder or under the Purchase Agreement or the Notes, in the event of any consolidation or merger in which any Issuer is not the surviving corporation, all shares of each class of the capital stock of the successor corporation (unless such successor corporation is the Company itself) formed by or resulting from such consolidation or merger (the Pledged Stock, together with all other certificates, shares, securities, properties or moneys as may from time to time be pledged hereunder pursuant to clause (a) or (b) above and this clause (c) being herein collectively called the “Stock Collateral”);
d. all accounts and general intangibles (each as defined in the Uniform Commercial Code) of the Company constituting any right to the payment of money, including (but not limited to) all moneys due and to become due to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors Company in respect of any loans or advances for the purchase price of Inventory or Equipment or other goods sold or leased or for services rendered, all moneys due and to issue Investor Capital Calls with respect theretobecome due to the Company under any guarantee (including a letter of credit) of the purchase price of Inventory or Equipment sold by the Company and all tax refunds (such accounts, general intangibles and moneys due and to become due being herein called collectively “Accounts”);
e. all instruments, chattel paper or letters of credit (iieach as defined in the Uniform Commercial Code) to of the extent Company evidencing, representing, arising from or existing in respect of, relating to, securing or otherwise supporting the payment of, any of the Accounts, including (but not limited to) promissory notes, drafts, bills of exchange and trade acceptances (herein collectively called “Instruments”);
f. all inventory (as defined in the Uniform Commercial Code) of the Company and all goods obtained by the Company in exchange for such inventory (herein collectively called “Inventory”);
g. all Intellectual Property of the Company and all other accounts or general intangibles of the Company not constituting Intellectual Property or Accounts;
h. all equipment (as defined in the Uniform Commercial Code) of the Company (herein collectively called “Equipment”);
i. each contract and other agreement of the Company relating to the Unfunded Capital Commitments sale or other disposition of Inventory or Equipment;
j. all documents of title (as defined in the Uniform Commercial Code) or other receipts of the Investors constituting Collateral Company covering, evidencing or representing Inventory or Equipment (herein collectively called “Documents”);
k. all rights, claims and benefits of the Company against any Person arising out of, relating to or in clause (i) aboveconnection with Inventory or Equipment purchased by the Company, (x) including, without limitation, any such rights, claims or benefits against any Person storing or transporting such Inventory or Equipment;
l. all estates of the Constituent DocumentsCompany in land together with all improvements and other structures now or hereafter situated thereon, (y) the Subscription Agreements and Side Letterstogether with all rights, if anyprivileges, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including tenements, hereditaments, appurtenances, easements, including, but not limited to, in each case of clauses (x)rights and easements for access and egress and utility connections, (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors rights now or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretohereafter appurtenant thereto (“Real Estate”);
(iii) any and m. all agreements, instruments and other documents of every kind tangible or description to the extent evidencing or supporting obligations under any intangible property of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral AccountCompany, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all proceeds, products and accessions of the records of the Guarantor concerning and to any of the foregoing Collateral; excluding property of the Company described in clauses (Aa) through (l) above in this Section 3 (including, without limitation, any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) proceeds of insurance thereon), and, to the extent usedrelated to any property described in said clauses or such proceeds, pursuant to products and accessions, all books, correspondence, credit files, records, invoices and other papers, including without limitation all tapes, cards, computer runs and other papers and documents in the terms possession or under the control of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement Company or any other Loan Document (i) computer bureau or service company from time to time acting for the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinCompany.
Appears in 3 contracts
Sources: Subsidiary Security Agreement (Irvine Sensors Corp/De/), Securities Purchase Agreement (Internet Commerce Corp), Security Agreement (Irvine Sensors Corp/De/)
Collateral. Subject to As collateral security for the terms prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the applicable Collateral DocumentsObligations, to secure the payment each Obligor hereby mortgages, charges, pledges, assigns and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, grants to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest in all of such Obligor’s right, title and ▇▇▇▇ in and on its interests interest in the followingfollowing property, whether now owned by such Obligor or hereafter acquired and whether now existing or arising:hereafter coming into existence, and wherever located (all being collectively referred to herein as “Collateral”):
(ia) any the Equity Interests of the Issuers identified in Part A of Annex 1 hereto under the name of such Obligor and all Unfunded Capital Commitments other Equity Interests of the Investorsany class of any Issuer, whether now or hereafter committedowned by such Obligor, including but not limited to together with in each case the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to certificates evidencing the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited tosame, in each case of clauses excluding any Excluded Equity Interests (xcollectively, the “Pledged Equity Interests”), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iiib) any the Equity Interests of the Issuers that are Foreign Subsidiaries or Foreign Holding Companies identified in Part B of Annex 1 hereto under the name of such Obligor, and all agreementsother Equity Interests of any class of any Issuer that is a Foreign Subsidiary or a Foreign Holding Company, instruments and other documents now or hereafter owned by such Obligor, together with in each case, if applicable, any certificates evidencing the same, in each case excluding any Excluded Equity Interests (the “Pledged Foreign Equity Interests”, respectively, and, together with the Pledged Equity Interests, collectively the “Pledged Interests”);
(c) all shares, securities, moneys or property representing a dividend or distribution of every kind or description to the extent evidencing or supporting obligations under profits on any of the foregoing Collateral Pledged Interests, or representing a distribution or return of capital upon or in respect of the Pledged Interests, or resulting from a split up, revision, reclassification or other like change of the Pledged Interests or otherwise received in exchange therefor, and any subscription warrants, rights or options issued to the holders of, or otherwise in respect of, the Pledged Interests, in each case subject to the limitation set forth in the proviso below (the Pledged Equity Interests and Pledged Foreign Equity Interests, collectively together with all security other certificates, shares, interests, securities, properties or moneys as may from time to time be pledged hereunder pursuant to clause (a) or (b) above and other property with respect to such this clause (c) being herein collectively called the “Equity Collateral” );
(ivd) each all Intercompany Notes (other than Excluded Intercompany Notes) owing from any Foreign Subsidiary or Foreign Holding Company;
(e) the balance from time to time in the Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(vf) any and all proceeds of any of the foregoing Collateral property of such Obligor described in the preceding clauses (a) through (e) of this Section 3 (including, without limitation, all causes of the records action, claims and warranties now or hereafter held by any Obligor in respect of the Guarantor concerning any of the foregoing Collateral; excluding (Aitems listed above) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) and, to the extent usedrelated to any property described in such clauses or such proceeds, pursuant all books, correspondence, credit files, records, invoices and other papers; provided that, in no event shall the Collateral include any Excluded Equity Interests or Excluded Intercompany Notes. In addition to the foregoing, the parties acknowledge that certain of the Equity Collateral may also be subject to a Foreign Pledge Agreement. In the event of any conflict between this Agreement and the terms of any Foreign Pledge Agreement with respect to the Guarantor’s Governing DocumentsEquity Collateral subject to such Foreign Pledge Agreement, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything Foreign Pledge Agreement shall control with respect to the contrary in this Credit Agreement or any other Loan Document (i) the term “such Equity Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 3 contracts
Sources: Restatement Agreement (Constellation Brands, Inc.), Restatement Agreement (Constellation Brands, Inc.), Credit Agreement (Constellation Brands, Inc.)
Collateral. Subject 4.1 In consideration of FSL granting or continuing to make available the Margin Facilities to the terms Customer, the Customer, as beneficial owner hereby charges, assigns and releases to FSL the following assets of the applicable Collateral Documents, Customer (as Collateral) as continuing security for the punctual payment to secure FSL on the payment respective due dates of all amounts outstanding under the Margin Facilities and all other moneys and sums due or owing from the Customer to FSL from time to time pursuant to this Agreement and for the performance of all the Obligations hereunder, obligations of the Customer to FSL from time to time pursuant to a Collateral Account Pledgethis Agreement:-
(a) all the Customer's rights, a Security Agreementtitle and interest in and to the Securities which shall at any time hereafter and from time to time be purchased or held by FSL or its nominee for or on account of the Customer pursuant to this Agreement and any Securities deposited with FSL whether pursuant to Clause 5.1 of this Section II or otherwise, together with all dividends or interest paid or payable after the related financing statements date hereof on or in respect of any of such Securities and the other related documents, the Guarantor shall grant, and shall pledge and/or assign all accretions thereto by way of securitybonus, distributions, options, rights or otherwise howsoever accruing or offered at any time hereafter (together the "Charged Securities"); and
(b) all and any funds standing to the Administrative Agent, credit of the Margin Account and all funds held by FSL for or on account of the Customer from time to time.
4.2 FSL is hereby irrevocably authorized to hold the Charged Securities in its own name or in the name of its nominee or be deposited in a safe custody in a designated account with its bankers or with any other institution which provides facilities for the benefit safe custody of each documents. In the case of Securities in Hong Kong, such institution shall be acceptable to the SFC as a provider of safe custody services and the Customer hereby irrevocably authorises FSL to do and execute any and all acts or things and documents necessary to transfer, complete and/or vest title to all of the Secured PartiesCharged Securities to it or its nominee and to do all such things and execute all such documents as it may reasonably require in order to perfect the security given hereunder.
4.3 The security given by the Customer hereunder shall be in addition to and may be enforced by FSL without prejudice to any other guarantee, as applicablepledge, lien, indemnity, assurance, mortgage, charge, debenture or collateral security or other power, right or remedy now or at any time hereafter held or available to FSL in respect of the Margin Facilities or the obligations of the Customer hereunder and shall be a first prioritycontinuing security notwithstanding the death, security bankruptcy, liquidation, winding-up, insolvency, incapacity or any change in the constitution of the Customer or any intermediate or partial payment or settlement of account or satisfaction of the whole or any part of the amounts outstanding under the Margin Facilities or any obligations of the Customer under this Agreement.
4.4 The Customer hereby irrevocably undertakes to FSL that all the Customer's rights, title and interest and ▇▇▇▇ in and to the Collateral will at all relevant times constitute the legal and unencumbered property of the Customer free from any trust, lien, charge, mortgage, pledge or other encumbrance (save as created or required hereunder). The Customer shall provide FSL with signed transfers or other instruments necessary for FSL to exercise its rights under this Agreement.
4.5 All dividends, interests, income, payments or other distributions received by FSL in respect of the Charged Securities will be credited to the Margin Account on its interests in receipt by FSL.
(a) The Customer hereby represents and warrants to FSL that during the following, whether now owned or hereafter acquired or arisingcontinuance of the Charge:
(i) any the Customer has and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited will maintain unencumbered and absolute title to the right Charged Securities (subject only to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretothe Charge);
(ii) the Charge constitutes and will continue to constitute the extent relating to the Unfunded Capital Commitments valid and legally binding obligations of the Investors constituting Collateral Customer enforceable in clause accordance with its terms.
(b) The Customer hereby undertakes and agrees that during the continuance of the Charge, the Customer shall:
(i) abovenot mortgage, charge, pledge or otherwise encumber or assign, transfer or otherwise deal with or grant or suffer to arise any third party rights over or against the whole or any part of the Collateral or purport so to do ranking in priority to or pari passu with the Charge, except in FSL's favour;
(xii) deposit with FSL or to its order, at such place as FSL may from time to time direct, all certificates, instruments and evidence of title to the Constituent DocumentsCharged Securities, (y) the Subscription Agreements and Side Letterstogether, if anywhere appropriate, with all such necessary forms of such Investors and (z) any and all guaranties transfer or other instructions, duly executed in favour of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toFSL, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights as FSL may from time to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretotime require;
(iii) at any time and all agreementsfrom time to time, instruments execute and deliver such further assignments, charges, authorities and other documents of every kind as FSL may from time to time require for perfecting its title to or description for vesting or enabling FSL to vest the extent evidencing or supporting obligations under any full benefit of the foregoing Collateral and any and all security in its favour, which assignments, charges, authorities and other property with respect to documents shall be prepared by FSL or on its behalf, at the cost of the Customer, and shall contain such Collateral;provisions for FSL's benefit as FSL may reasonably require, for which purposes the Customer hereby irrevocably appoints FSL as the Customer's lawful attorney; and
(iv) each Collateral Accountobtain and maintain in full force and effect all governmental and other approvals, including but not limited to any authorities, licenses and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received consents required in connection with the Swap Agreements, (iv) Charge and to do or cause to be done all other acts and things necessary or desirable for the Collateral may be subject performance of all the obligations of the Customer pursuant to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap this Agreement, as provided therein.
Appears in 3 contracts
Sources: Client Trading Agreement, Client Trading Agreement, Client Trading Agreement
Collateral. Subject Notwithstanding anything herein to the contrary, in no event shall the security interest granted under Section 3.01 or 4.01 hereof attach to the following (collectively, the “Excluded Assets”) (a) any lease, license, General Intangible, contract or agreement to which any Grantor is a party or any of its rights or interests thereunder to the extent that (and for as long as) (i) such lease, license, General Intangible, contract or agreement, or assets subject thereto, are not assignable or capable of being encumbered as a matter of law or under the terms of the lease, license, General Intangible, contract or agreement applicable Collateral Documentsthereto (but solely to the extent that any such restriction shall be enforceable under applicable law, to secure the payment and performance including Sections 9-406, 9-407, 9-408 or 9-409 of the Obligations New York UCC, in respect of the grant of a security interest hereunder), without the consent of the licensor or lessor thereof, or other applicable party thereto and (ii) such consent has not been obtained; (b) any intent-to-use application for a Trademark to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use application for a Trademark under federal law, (c) any vehicle or other assets owned by any Grantor that is subject to a certificate of title, (d) in the case of voting Equity Interests of a Foreign Subsidiary of the Borrower or any Domestic Subsidiary of the Borrower which is treated as a Foreign Subsidiary of the Borrower for United States federal income purposes, more than 66% of such voting Equity Interests, (e) any Equity Interests in joint ventures or any non-wholly owned Subsidiaries, but only to the extent that the organizational documents or other agreements with other equity holders do not permit or otherwise restrict the pledge of such Equity Interest, (f) assets that are subject to or secured by Liens (i) permitted by Section 6.02(d), (g) or (m) of the Credit Agreement, (ii) permitted by Section 6.02(s) of the Credit Agreement securing Indebtedness described in Section 6.01(m)(i) of the Credit Agreement (but only to the extent that (x) the documentation pursuant to which such Liens were granted prohibits the granting of a Lien hereunder, pursuant (y) such documentation and Liens were in effect prior to such acquisition and (z) such Liens were not incurred, and such documentation was not entered into, by a Collateral Account Pledge, a Security Grantor in anticipation of such acquisition) of the Credit Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way (iii) in favor of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇▇ Fargo Bank, National Association on the cash collateral in respect of the Prepetition LC Facility or (iv) securing a purchase money obligation or Capital Lease Obligations permitted to be incurred pursuant to the provisions of the Credit Agreement, in each case to the extent the documentation relating to such Lien prohibits, or requires any consent for, any other Lien on such asset, (g) any governmental licenses or state or local franchises, charters and on its authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby, (h) any Letter-Of-Credit Rights to the following, whether now owned or hereafter acquired or arising:
extent perfection of a Lien in such Letter-Of-Credit Rights cannot be obtained by filing financing statements and (i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls Commercial Tort Claims with respect thereto;
(ii) to which notice is not required to be delivered under Section 4.04(f). With respect to any provision or restriction affecting the extent relating to Collateral the Unfunded Capital Commitments of reason for which such Collateral constitutes an Excluded Asset, immediately upon the Investors constituting Collateral in clause (i) aboveineffectiveness, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, lapse or termination of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors provision or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property restriction with respect to such Collateral;
(iv) each Excluded Asset, the Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreementshall include, and (B) such Grantor shall be deemed to have granted a security interest in, the proceeds of rights and interests in such withdrawn funds (Collateral as if such provision or restriction had never been in effect and if and when such property shall cease to be an Excluded Asset, such property shall be deemed at all times from and after the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything date thereof to the contrary in this Credit Agreement or any other Loan Document (i) the term “constitute Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 3 contracts
Sources: Revolving Facility Guarantee and Collateral Agreement (HMH Holdings (Delaware), Inc.), Term Facility Guarantee and Collateral Agreement (HMH Holdings (Delaware), Inc.), Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.)
Collateral. Subject All present and hereafter acquired property of Company wherever located and however described and whether or not constituting a fixture (including, without limitation, any and all present and future property), together, in each case, with all proceeds thereof, including without limitation all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts (including health-care-insurance receivables and credit card receivables), chattel paper (whether tangible or electronic), deposit accounts, letter-of-credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities and all other investment property, supporting obligations, any other contract rights or rights to the terms payment of money, insurance claims and proceeds, money, patents, patent applications, trademarks, trademark applications, copyrights, copyright applications, trade names, other names, software, and all general intangibles (including all payment intangibles); together with all goodwill related to the foregoing property and all rights, liens, security interests and other interests which Company may at any time have by law or agreement against any account debtor, issuer or obligor obligated to make any such payment or against any of the applicable Collateral Documentsproperty of such account debtor, to secure the payment and performance of the Obligations hereunderissuer, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantor obligor, and shall pledge and/or assign by way of security, all other supporting obligations relating to the Administrative Agentforegoing, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the followingwhether now existing or hereafter arising, whether now owned or hereafter acquired or arising:
(i) any acquired; and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors products and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any proceeds of the foregoing Collateral property, including without limitation all accounts, instruments, chattel paper, investment property, letter-of-credit rights, letters-of-credit, other rights to payment, documents, deposit accounts, money, insurance proceeds and any general intangibles related to the foregoing property, and all security refunds of insurance premiums due or to become due under all insurance policies covering the foregoing property, all whether now owned or hereafter acquired, and other property wherever located, together with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)foregoing. Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein[ALL REGISTERED INTELLECTUAL PROPERTY SHOULD BE SPECIFICALLY IDENTIFIED BELOW. FAILURE TO SO LIST REGISTERED INTELLECTUAL PROPERTY DOES NOT EXCLUDE IT FROM COLLATERAL.]
Appears in 3 contracts
Sources: Loan and Security Agreement (Red Cat Holdings, Inc.), Revenue Loan and Security Agreement (Splash Beverage Group, Inc.), Revenue Loan and Security Agreement (NowRx, Inc.)
Collateral. Subject (i) Without the consent of any other person, but subject to the terms of the any applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Intercreditor Agreement, the related financing statements applicable Credit Party or Parties and the other related documentsAdministrative Agent and/or Collateral Agent may (in its or their respective sole discretion), the Guarantor shall grant, and shall pledge and/or assign by way of securityor shall, to the Administrative Agentextent required by any Loan Document enter into any amendment or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion (including to cover additional amounts as secured obligations thereunder) or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of each of the Secured Parties, or as applicablerequired by local law to give effect to, a first priorityor protect, any security interest and ▇▇▇▇ in and on its interests in for the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments benefit of the Investors, whether now Secured Parties in any property or hereafter committed, including but not limited to so that the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls security interests therein comply with respect thereto;applicable Requirements of Law.
(ii) Notwithstanding anything in this Agreement or any Security Document to the extent relating to contrary, the Unfunded Capital Commitments Administrative Agent and/or, as applicable, the Collateral Agent may, in its sole discretion, grant extensions of time for the satisfaction of any of the Investors constituting requirements under Sections 5.10 and 5.11 or of any Security Document in respect of any particular Collateral in clause (i) above, (x) or any particular Subsidiary if it determines that the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions satisfaction thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;to such Collateral or such Subsidiary cannot be accomplished without undue expense or unreasonable effort or due to factors beyond the control of Holdings, the Borrower and the Restricted Subsidiaries by the time or times at which any such requirement would otherwise be required to be satisfied under this Agreement or any Security Document.
(iii) any and all agreements, instruments and other documents of every kind or description The Lenders hereby irrevocably agree that the Liens granted to the extent evidencing or supporting obligations under Collateral Agent by the Credit Parties on any Collateral shall be automatically released (i) in full, upon the termination of this Agreement and the foregoing Collateral and any and payment in full of all security and Secured Obligations (other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding than (A) any funds properly withdrawn from a Collateral Account contingent indemnification obligations and unasserted expense reimbursement obligations, (or that could be withdrawn pursuant B) obligations and liabilities under Secured Cash Management Agreements and Secured Hedging Agreements as to which arrangements satisfactory to the applicable Cash Management Bank or Hedge Bank shall have been made, and (C) Letters of Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors that have been cash collateralized in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and of this Credit Agreement, and (B) the proceeds backstopped with a back to back letter of such withdrawn funds (the items credit in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything a manner reasonably acceptable to the contrary in this Credit Agreement applicable Issuing Bank or any other Loan Document (i) rolled into another credit facility to the term “Collateral” shall not include the Unfunded Capital Commitments sole satisfaction of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretionapplicable Issuing Bank), (ii) upon the term “Collateral” shall not include sale or other disposition of such Collateral (including as part of or in connection with any Portfolio Investmentother sale or other disposition permitted hereunder) to any Person other than another Credit Party, to the extent such sale or other disposition is made in compliance with the terms of this Agreement (and the Collateral Agent may rely conclusively on a certificate to that effect provided by any Portfolio Assets or any Excluded ProceedsCredit Party upon its reasonable request without further inquiry), (iii) to the term “Collateral” shall not include any collateral posted extent such Collateral is comprised of property leased to a Credit Party, upon termination or received in connection with the Swap Agreementsexpiration of such lease, (iv) if the Collateral release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or such other percentage of the Lenders whose consent may be subject to Permitted Liensrequired in accordance with this Section 10.02), (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the extent the property constituting such Collateral Accounts that will not be considered “Collateral” and is owned by any Guarantor, upon the release of such other accounts shall not be subject to control agreements or other restrictions and Guarantor from its obligations under the applicable Guarantee (in accordance with the second following sentence), (vi) as required to effect any sale or other disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Security Documents, or (vii) if such assets constitute Excluded Property. Any such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other than those being released) upon (or obligations (other than those being released) of the Credit Parties in respect of) all interests retained by the Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral except to the extent otherwise released in accordance with the provisions of the Loan Documents. Additionally, the Lenders hereby irrevocably agree that any Restricted Subsidiary that is a Guarantor shall be released from the Guarantees upon consummation of any transaction not prohibited by this Agreement resulting in such Subsidiary ceasing to constitute a Restricted Subsidiary or upon becoming an Excluded Subsidiary. The Lenders hereby authorize the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap AgreementCollateral Agent, as provided thereinapplicable, to, and the Administrative Agent and the Collateral Agent agree to, execute and deliver any instruments, documents and agreements necessary or desirable or reasonably requested by the Borrower to evidence and confirm the release of any Guarantor or Collateral pursuant to the foregoing provisions of this paragraph, all without the further consent or joinder of any Lender and without any representation or warranty of any such Agent or Lender.
Appears in 3 contracts
Sources: Credit Agreement (Cvent Holding Corp.), Credit Agreement (Ping Identity Holding Corp.), Credit Agreement (Roaring Fork Holding, Inc.)
Collateral. Subject As security for the Obligations, the Debtor does hereby transfer, assign and convey to the terms Secured Party, and grant to the Secured Party a security interest in, all of the applicable Collateral Documentsits right, title and interest in, to secure and under the payment and performance of the Obligations hereunderfollowing property, pursuant to a Collateral Account Pledgewhether real, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the followingpersonal or mixed, whether now owned or hereafter acquired by the Debtor, and wherever located (hereinafter collectively called the "Collateral"):
(a) All Equipment, Inventory, materials, vehicles, supplies, fixtures, goods and other tangible personal property of the Debtor (hereinafter collectively called the "Tangible Collateral" except to the extent any lease or arising:agreement with respect thereto would be violated if they were covered by the terms of this Security Agreement or treated as Collateral under this Security Agreement);
(b) all existing and future leases and use agreements of personal property entered into by the Debtor as lessor with other Persons as lessees, including, without limitation, the right to receive and collect all rentals and other monies, including security deposits, at any time payable under such leases and agreements;
(c) any existing and future leases and use agreements of personal property entered into by the Debtor as lessee with other Persons as lessor, including, without limitation, the leasehold interest of the Debtor in such property, and all options to purchase such property or to extend any such lease or agreement, except any such leases or agreements which would be violated if they were covered by the terms of this Security Agreement or treated as Collateral for the purposes of this Security Agreement;
(d) any and all accessions and additions now or hereafter made or added to any of the property described in subparagraphs (a) through (c) above, any substitutions and replacements therefor, and all attachments and improvements now or hereafter placed upon or used in connection therewith, or any part thereof;
(e) all Accounts of the Debtor;
(f) all General Intangibles of the Debtor and any agreements constituting part of General Intangibles except such agreements which would be violated if they were covered by the terms of this Security Agreement or treated as Collateral for the purposes of this Security Agreement;
(g) all Deposit Accounts and all monies of the Debtor and all bank accounts in which such monies may at any time be held and all investments or securities in which such monies may at any time be invested and all certificates, instruments and documents from time to time representing or evidencing any such monies;
(h) all interest, dividends, proceeds, products, rents, royalties, issues and profits of any of the Collateral described in subparagraphs (a) through (g) above and all notes, certificates of deposit, checks and other instruments from time to time delivered to or otherwise possessed by the Secured Party for or on behalf of the Debtor in substitution for or in addition to any or all of said property;
(i) any all books, documents and all Unfunded Capital Commitments of the Investors, records (whether now on computer or hereafter committed, including but not limited otherwise) related to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
items described in subparagraphs (iva) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretothrough (h) above; and
(vj) any all products and all proceeds of any of the foregoing items described in subparagraphs (a) through (i) above. No submission by the Debtor to the Secured Party of a schedule or other particular identification of Collateral includingshall be necessary to vest in the Secured Party security title to and a security interest in each and every item of Collateral of the Debtor now existing or hereafter created and acquired, but rather such title and security interest shall vest in the Secured Party immediately upon the creation or acquisition of any item of Collateral hereafter created or acquired, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or necessity for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected further action by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets Debtor or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and by the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinParty.
Appears in 3 contracts
Sources: Security Agreement (Windswept Environmental Group Inc), Security Agreement (Windswept Environmental Group Inc), Security Agreement (Windswept Environmental Group Inc)
Collateral. Subject Borrower hereby grants to Bank a security interest in all of its inventory of: _X_ New Motor Vehicles (now existing or hereafter acquired) _X_ Used Motor Vehicles (now existing or hereafter acquired) including all parts and accessories added to vehicles, now existing or hereafter acquired by Borrower, including any such goods as may be leased or held for leasing, together with any and all accounts and proceeds arising from the terms sale, lease or disposition of the applicable Collateral Documentssaid property and all returned, to secure the payment refused and performance of the Obligations hereunderrepossessed goods, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign all monies received from manufacturers by way of securitycredits, refunds or otherwise with respect to the Administrative AgentCollateral, for the benefit and all proceeds thereof (Collateral) to secure all debt of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) Borrower to Bank under any and all Unfunded Capital Commitments present and future Advances of whatever kind and further including but not limited to the Investors, whether Line and all other debt and other obligations of Borrower to Bank of any nature now existing or hereafter committedarising, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments debt arising directly between Borrower and Bank or acquired outright, conditionally or as Collateral security from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveanother by Bank, (x) the Constituent Documentsabsolute or contingent, (y) the Subscription Agreements and Side Lettersjoint or several, if anysecured or unsecured, of such Investors and (z) any and all guaranties of such Investors’ obligations due or not due, contractual or tortious, liquidated or unliquidated, arising under the Constituent Documents operation of law or otherwise, direct or indirect, whether incurred directly or as part of a partnership, association or other group, or whether incurred as principal, surety, indorser, accommodation party or otherwise. Borrower will execute and Subscription Agreements including but not limited todeliver any documents, in each case of clauses (x)instruments or agreements required by Bank to evidence debt hereunder, (y) grant, perfect and (z)preserve the security interest, any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to carry out the terms of this Agreement. The security interest herein described is also evidenced by a Security Agreement between Borrower and Bank, and in the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to event of any such account), to make payments or distributions to Investors in accordance with conflict between the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”terms thereof, except in connection with any Swap Agreement, as provided thereinthe terms hereof will apply.
Appears in 3 contracts
Sources: Floor Plan Agreement (Sonic Automotive Inc), Floor Plan Agreement (Sonic Automotive Inc), Floor Plan Agreement (Sonic Automotive Inc)
Collateral. Subject Debtor hereby grants to Secured Party a continuing security interest in all right, title and interest of Debtor in the terms collateral now existing and hereafter arising or acquired by Debtor, regardless of where it is located, and is defined as follows (together with all proceeds and products thereof and all additions and accession thereto, replacements thereof, supporting obligations therefor, guaranties thereof, insurance or condemnation proceeds thereof, documents related thereto, all sales of accounts constituting a right to payment therefrom, all tort or other claims against third parties arising out of damage thereto or destruction thereof, all property received wholly or partly in trade or exchange thereof, all fixtures attached or appurtenant thereto, all leases thereof, and all rents, revenues, issues, profits and all proceeds arising from the applicable Collateral Documentssale, to secure the payment and performance of the Obligations hereunderlease, pursuant to a Collateral Account Pledgelicense, a Security Agreementencumbrance, collection or any other temporary or permanent disposition thereof, or any other interest therein, collectively, the related financing statements and the other related documents“Collateral”):
(a) All Accounts, the Guarantor shall grantall Accounts Receivable, all Cash Security, all Inventory, all Equipment, all General Intangibles, and shall pledge and/or assign by way of securityall Investment Property, to the Administrative Agent, for the benefit of in each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, case whether now owned or hereafter acquired or arising:received by Debtor; and
(ib) any and all Unfunded Capital Commitments of the InvestorsAll Instruments, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letterschattel paper, if anyelectronic chattel paper, securities, moneys, cash, letters of such Investors and (z) any and all guaranties credit, letter of such Investors’ obligations under the Constituent Documents and Subscription Agreements credit rights, promissory notes, warrants, dividends, distributions, commercial tort claims, contracts, agreements, contract rights or other property, owned by Debtor or in which Debtor has an interest, including but not limited to, those which are now or hereafter in each case the possession or control of clauses (x)Secured Party or in transit by mail or carrier to or in the possession of any third party acting on behalf of Secured Party, (y) without regard to whether Secured Party received the same in pledge, for safekeeping, as agent for collection or transmission or otherwise or whether Secured Party had conditionally released the same, and (z)the proceeds thereof, any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any payment from, and all agreementsclaims against Secured Party, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any deposit accounts of Debtor with Secured Party, including all demand, time, savings, passbook or other accounts and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretodeposits therein; and
(vc) any All of the Proceeds, products, profits, and rents of Debtor’s Accounts, Accounts Receivable, Inventory, Equipment, Cash Security, Investment Property and General Intangibles and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents books and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insidersrecords, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitmentscomputer software, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except used in connection with any Swap Agreement, as provided thereinof the Collateral.
Appears in 3 contracts
Sources: Security Agreement (Energy Inc.), Security Agreement (Energy Inc.), Security Agreement (Energy Inc.)
Collateral. Subject In addition to, and not in substitution for, any Property delivered, conveyed, transferred or assigned to you under any Loan Document as security for any or all of Applicant’s obligations and liabilities to you at any time existing under or in connection with any L/C Document or any Loan Document, Applicant grants to you a security interest in and to the terms following Collateral, whether or not any such Collateral is in your possession or control or the possession or control of the applicable Collateral Documentsyour agents or correspondents or in transit to, or set apart for, you or your agents or correspondents, until such time as all Applicant’s obligations and liabilities to secure the payment you at any time existing under or in connection with each L/C Document and performance of the Obligations hereundereach Loan Document have been fully paid and discharged, pursuant to a Collateral Account Pledgeall as security for such obligations and liabilities, a Security Agreement(a) all Applicant’s property, the related financing statements claims, demands, right, title and the other related documents, the Guarantor shall grant, interest in and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit balance of each of the Secured PartiesApplicant’s deposit accounts with you now or at any time hereafter existing, as applicableand all evidences of such deposit accounts, a first priority(b) all Property belonging to Applicant or in which it may have an interest, security interest and ▇▇▇▇ now or at any time hereafter delivered, conveyed, transferred, assigned, pledged or paid to you or your agents or correspondents in and on its interests in the followingany manner whatsoever, whether now owned as security or hereafter acquired for safekeeping or arising:
(i) any and all Unfunded Capital Commitments of the Investorsotherwise, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (items received for collection or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreementtransmission, and (B) the proceeds of such withdrawn funds (the items items, whether or not such Property is in (A) whole or in part released to Applicant on trust or bailee receipt or otherwise, and (B)c) where Applicant is more than one person or entity, collectively “Excluded Proceeds”)all right, title and interest of each of Applicants in and to all the Property which any of Applicants may now or hereafter obtain as security for the obligations of any one or more of Applicants to one or more of the others of Applicants arising under or in connection with the transaction to which any Credit relates. Notwithstanding the foregoing Further, in addition to, and not in substitution for, any Property delivered, conveyed, transferred or anything assigned to the contrary you under any Loan Document as security for any or all of Applicant’s obligations and liabilities to you at any time existing under or in this Credit Agreement connection with any L/C Document or any other Loan Document Document, Applicant agrees to deliver, convey, transfer and assign to you on demand, as security, Property of a value and character satisfactory to you, (i) if you at any time feel insecure about Applicant’s ability or willingness to repay any amounts which you have paid or may pay in the term “Collateral” shall not include future on any Demand or in honoring any other of your obligations under or in connection with any Credit, or (ii) without limiting the Unfunded Capital Commitments generality of the SOX Insidersforegoing, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitmentsif any temporary or permanent restraining order, preliminary or permanent injunction, or any other interests of the SOX Insiderspretrial or permanent injunctive or similar relief is obtained restraining, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investmentprohibiting or enjoining you, any Portfolio Assets of your correspondents, or any Excluded Proceedsadvising, (iii) the term “Collateral” shall not include confirming, negotiating, paying or other bank from paying or negotiating any collateral posted Demand or received honoring any other obligation under or in connection with any Credit. Applicant agrees that the Swap Agreementsreceipt by you or any of your agents or correspondents at any time of any kind of security, including, without limitation, cash, shall not be deemed a waiver of any of your rights or powers under this Agreement. Applicant agrees to sign and deliver to you on demand, all such deeds of trust, security agreements, financing statements and other documents as you shall at any time request which are necessary or desirable (ivin your sole opinion) to grant to you an effective and perfected security interest in and to any or all of the Collateral. Applicant agrees to pay all filing and recording fees related to the perfection of any security interest granted to you in accordance with this Section. Applicant hereby agrees that any or all of the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” held and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, disposed of as provided thereinin this Agreement by you. Upon any transfer, sale, delivery, surrender or endorsement of any Document or Property which is or was part of the Collateral, Applicant will indemnify and hold you and your agents and correspondents harmless from and against each and every claim, demand, action or suit which may arise against you or any of your agents or correspondents by reason of such transfer, sale, delivery, surrender or endorsement.
Appears in 3 contracts
Sources: Standby Letter of Credit Agreement, Standby Letter of Credit Agreement (Barrett Business Services Inc), Standby Letter of Credit Agreement (Phoenix Footwear Group Inc)
Collateral. Subject In addition to, and not in substitution for, any Property delivered, conveyed, transferred or assigned to you under any Loan Document as security for any or all of Applicant’s obligations and liabilities to you at any time existing under or in connection with any L/C Document or any Loan Document, Applicant grants to you a security interest in and to the terms following Collateral, whether or not any such Collateral is in your possession or control or the possession or control of your agents or correspondents or in transit to, or set apart for, you or your agents or correspondents: (a) with respect to each Credit and until such time as all Applicant’s obligations and liabilities to you at any time existing under or in connection with each Credit and the L/C Documents and Loan Documents related to such Credit have been fully paid and discharged, all as security for such obligations and liabilities, (i) all Property referred to in, or at any time shipped under or pursuant to, or in any way related to, each Credit or to any Demand made or Acceptance created under each Credit, whether or not you receive the Documents covering such Property or release such Documents to Applicant on trust or bailee receipt or otherwise, (ii) all Documents accompanying any Demand made under each Credit, and (iii) all the proceeds of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements Property and the other related documents, the Guarantor shall grantDocuments referred to in subsections (i) and (ii) of this Section 10(a), and shall pledge and/or assign by way of security(b) with respect to all the Credits and until such time as all Applicant’s obligations and liabilities to you at any time existing under or in connection with each L/C Document and each Loan Document have been fully paid and discharged, all as security for such obligations and liabilities, (i) all Applicant’s property, claims, demands, right, title and interest in and to the Administrative Agent, for the benefit balance of each of the Secured PartiesApplicant’s deposit accounts with you now or at any time hereafter existing, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments evidences of the Investorssuch deposit accounts, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) all Property belonging to the extent relating Applicant or in which it may have an interest, now or at any time hereafter delivered, conveyed, transferred, assigned, pledged or paid to the Unfunded Capital Commitments of the Investors constituting Collateral you or your agents or correspondents in clause (i) aboveany manner whatsoever, (x) the Constituent Documentswhether as security or for safekeeping or otherwise, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (items received for collection or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreementtransmission, and (B) the proceeds of such withdrawn funds items, whether or not such Property is in whole or in part released to Applicant on trust or bailee receipt or otherwise, and (iii) where Applicant is more than one person or entity, all right, title and interest of each of Applicants in and to all the items Property which any of Applicants may now or hereafter obtain as security for the obligations of any one or more of Applicants to one or more of the others of Applicants arising under or in connection with the transaction to which any Credit relates. Further, in addition to, and not in substitution for, any Property delivered, conveyed, transferred or assigned to you under any Loan Document as security for any or all of Applicant’s obligations and liabilities to you at any time existing under or in connection with any L/C Document or any Loan Document, Applicant agrees to deliver, convey, transfer and assign to you on demand, as security, Property of a value and character satisfactory to you, (A) and if you at any time feel insecure about Applicant’s ability or willingness to repay any amounts which you have paid or may pay in the future on any Demand or Acceptance or in honoring any other of your obligations under or in connection with any Credit, or (B), collectively “Excluded Proceeds”). Notwithstanding ) without limiting the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments generality of the SOX Insidersforegoing, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitmentsif any temporary or permanent restraining order, preliminary or permanent injunction, or any other interests of the SOX Insiderspretrial or permanent injunctive or similar relief is obtained restraining, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investmentprohibiting or enjoining you, any Portfolio Assets of your correspondents, or any Excluded Proceedsadvising, (iii) the term “Collateral” shall not include confirming, negotiating, paying, accepting or other bank from paying or negotiating any collateral posted Demand or received creating or paying any Acceptance or honoring any other obligation under or in connection with any Credit. Applicant agrees that the Swap Agreementsreceipt by you or any of your agents or correspondents at any time of any kind of security, including, without limitation, cash, shall not be deemed a waiver of any of your rights or powers under this Agreement. Applicant agrees to sign and deliver to you on demand, all such deeds of trust, security agreements, financing statements and other documents as you shall at any time request which are necessary or desirable (ivin your sole opinion) to grant to you an effective and perfected security interest in and to any or all of the Collateral. Applicant agrees to pay all filing and recording fees related to the perfection of any security interest granted to you in accordance with this Section. Applicant hereby agrees that any or all of the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” held and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, disposed of as provided thereinin this Agreement by you. Upon any transfer, sale, delivery, surrender or endorsement of any Document or Property which is or was part of the Collateral, Applicant will indemnify and hold you and your agents and correspondents harmless from and against each and every claim, demand, action or suit which may arise against you or any of your agents or correspondents by reason of such transfer, sale, delivery, surrender or endorsement.
Appears in 2 contracts
Sources: Commercial Letter of Credit Agreement, Commercial Letter of Credit Agreement (Phoenix Footwear Group Inc)
Collateral. Subject As security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of all Outstanding Obligations, and to induce Lender to enter into the Credit Agreement and to make the Loan in accordance with the terms of the applicable Collateral DocumentsCredit Agreement, Debtor hereby assigns, conveys, mortgages, pledges, hypothecates and transfers to Lender and hereby grants to Lender a continuing first priority security interest in, all of Debtor’s right, title and interest in, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in under the following, whether now owned existing or hereafter acquired incurred, created, arising or arising:entered into (all of which being hereinafter collectively called the “Collateral”):
(i) any and all Unfunded Capital Commitments Accounts of the InvestorsDebtor (provided that, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or notwithstanding anything to the contrary in this Credit Security Agreement or in the Credit Agreement, any security interest granted to Lender in Debtor’s accounts receivable and cash will be subordinate to any security interest in such accounts receivable granted by Debtor to Debtor’s accounts receivable revolving credit lender (the “AR Lien”);
(ii) all Chattel Paper of Debtor;
(iii) all Contracts of Debtor;
(iv) all Documents of Debtor;
(v) all Equipment and Tangible Collateral of Debtor;
(vi) all General Intangibles of Debtor;
(vii) all Instruments of Debtor;
(viii) all Securities and letters of credit of Debtor;
(ix) all Inventory of Debtor;
(x) all Permits and Licenses of Debtor and the proceeds thereof, to the extent now or hereafter permitted by applicable law;
(xi) all leases and use agreements of personal property entered into by Debtor as lessor with other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments persons as lessees, and all rights of the SOX InsidersDebtor under such leases and agreements, including but not limited to the right to draw down Investor Capital Contributions on receive and collect all rentals and other moneys (including security deposits) at any time payable under such Unfunded Capital Commitmentsleases and agreements, whether paid or accruing before or after the filing of any petition by or against Debtor under the federal Bankruptcy Code;
(xii) all leases and use agreements of personal property entered into by Debtor as lessee with other persons as lessor, and all rights, titles and interests of Debtor thereunder, including the leasehold interest of Debtor in such property and all options to purchase such property or to extend any such lease or agreement;
(xiii) to the extent not described above, all fixtures of Debtor;
(xiv) all Copyrights, Patents and Trademarks of Debtor;
(xv) all moneys of Debtor, all Deposit Accounts of Debtor in which such moneys may at any time be invested and all certificates, instruments and documents of Debtor from time to time representing or evidencing any such moneys;
(xvi) all other goods and personal property of Debtor, whether tangible or intangible, now owned or hereafter acquired by Debtor or in which Debtor now has or hereafter acquires any rights and wherever located;
(xvii) all property of Debtor held by Lender, including all property of every description, now or hereafter in the possession or custody of or in transit to Lender for any purpose, including safekeeping, collection or pledge, for the account of Debtor, or as to which Debtor may have any other interests right or power;
(xviii) all insurance policies related to the foregoing; and
(xix) subject to the provisions of Section 2(b) below, to the extent not otherwise included, all Proceeds of each of the SOX Insidersforegoing and all accessions to, if anysubstitutions and replacements for, unless so elected by and rents, profits and products of each of the Guarantor foregoing and all books and records in its discretionwhatever media (whether on computer or otherwise) whether recorded or stored relating to each of the foregoing, (ii) and all equipment and general intangibles necessary or beneficial to retain, access or process the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received information contained in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” those books and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinrecords.
Appears in 2 contracts
Sources: Security Agreement (Frankly Inc), Security Agreement (Frankly Inc)
Collateral. (i) Subject to the terms proviso below, each of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements Parent and the other related documents, the Guarantor shall grantBorrower shall, and shall pledge and/or assign by way of securitycause each other Loan Party to, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇▇ in and ▇ ▇▇▇▇ pursuant to the Security Instruments on substantially all of its interests Property located in the following, whether United States now owned or at any time hereafter acquired by it or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committedother Loan Party, including but not limited to (A) all Equipment, Accounts, Chattel Paper, Documents, General Intangibles, Instruments and Inventory (as each such term is defined in the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors UCC), (B) all real property and to issue Investor Capital Calls with respect thereto;(C) the Equity Interests in each Domestic Subsidiary and Foreign Subsidiary; and
(ii) subject to the extent relating proviso below, upon the formation or acquisition of any Significant Domestic Subsidiary or upon any Subsidiary becoming a Significant Domestic Subsidiary after the Initial Availability Date, the Borrower shall promptly:
(A) cause such Significant Domestic Subsidiary to ▇▇▇▇▇ ▇ ▇▇▇▇ pursuant to the Unfunded Capital Commitments Security Instruments on substantially all of its Property located in the Investors constituting Collateral in clause (i) aboveUnited States now owned or at any time hereafter acquired by it, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all Equipment, Accounts, Chattel Paper, Documents, General Intangibles, Instruments, and Inventory (as each such term is defined in the UCC);
(B) pledge, or cause the appropriate Person to pledge, pursuant to the Guaranty and Collateral Agreement or the Pledge Agreement, as applicable, all of the records Equity Interests in such Significant Domestic Subsidiary (and, to the extent certificated, deliver original stock certificates or other certificates evidencing the capital stock of such entity, together with an appropriate undated stock power for each certificate, duly executed in blank by the registered owner thereof);
(C) cause such Significant Domestic Subsidiary to grant a Mortgage on any real property owned by such Significant Domestic Subsidiary; and
(D) execute and deliver, or cause such Significant Domestic Subsidiary to execute and deliver, such other additional documents and certificates as shall reasonably be requested by the Administrative Agent; and
(iii) subject to the proviso below, upon the formation or acquisition of any Foreign Subsidiary or any Domestic Subsidiary that is not a Significant Domestic Subsidiary after the Initial Availability Date, Parent and the Borrower shall promptly:
(A) pledge, or cause the appropriate Person to pledge, pursuant to the Pledge Agreement, (1) 65% of the Guarantor concerning voting capital stock and 100% of the non-voting capital stock of each first-tier Foreign Subsidiary that is a CFC (and, to the extent certificated and to the extent that delivery of such certificates is not prohibited due to a Governmental Requirement, deliver original stock certificates or other certificates evidencing 65% of the voting capital stock and 100% of the non-voting capital stock of such entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (2) 100% of the capital stock of each Domestic Subsidiary that is not a Significant Domestic Subsidiary and each Foreign Subsidiary that is not a CFC or a Subsidiary of a CFC (and, to the extent certificated, deliver original stock certificates or other certificates evidencing the capital stock of such entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof); and
(B) execute and deliver, or cause such Foreign Subsidiary or Domestic Subsidiary, as applicable, to execute and deliver, such other additional documents and certificates as shall reasonably be requested by the Administrative Agent; provided that the foregoing clauses (i), (ii) and (iii) shall not require the creation or perfection of pledges of, security interests in or Mortgages on, (A) the Equity Interests in, and any Property of, any ABS Subsidiary, (B) any real property, whether leasehold interests or owned real property, located in any jurisdiction other than the United States, (C) any leasehold interests or any owned real property that has a book value of less than $5,000,000 on an individual basis (provided, however, if in the aggregate, the book value of all real property owned by any Loan Party or Restricted Subsidiary and not subject to a Mortgage (“Non-Mortgaged Real Property”) exceeds $15,000,000 as of the last day of any Fiscal Quarter, then the Borrower shall, within thirty (30) days after delivery of the financial statements required to be delivered for such Fiscal Quarter pursuant to Section 8.01(a), deliver Mortgages with respect to as much of such real property as is necessary to ensure that the aggregate book value of all Non-Mortgaged Real Property as of the last day of such Fiscal Quarter does not exceed $15,000,000), (D) any Property identified on Schedule 8.06, (E) the Equity Interests owned by any Loan Party or a Restricted Subsidiary in a Joint Venture to the extent (but only to the extent) (i) the Organization Documents of such Joint Venture or any other agreement relating to such Joint Venture prohibit the granting of a Lien on such Equity Interests or (ii) such Equity Interests in such Joint Venture are otherwise pledged as collateral as permitted by Section 9.02(g), provided however, if any of the foregoing Collateral; excluding (A) conditions cease to be in effect for any funds properly withdrawn from a Collateral Account (or that could reason, then the Equity Interests in such Joint Venture shall automatically be withdrawn subject to the lien and security interest pursuant to the Credit Agreement if deposited Guaranty and Collateral Agreement, (F) any Property that in the reasonable judgment of the Administrative Agent, the cost of creating or credited perfecting such pledges, security interests or Mortgages on such Property would be excessive in view of the benefits to be obtained by the Lenders therefrom, (G) any assets directly or indirectly legally owned by any CFC or more than 65% of the capital stock of any CFC, (H) more than 65% of the voting Equity Interests of any Excluded Subsidiary, (I) any Property subject to a Lien permitted by Section 9.02(b), (d) or (e), (K) Equity Interests in Hanover Cayman Limited, Production Operators Cayman Inc. or Exterran (Thailand) Ltd. or (L) Equity Interests of a direct or indirect Subsidiary of any CFC; provided further that the Borrower and any Guarantor will have ninety (90) days to perfect Liens on Property acquired in an acquisition. The Borrower will also (1) deliver a Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each parcel of real property that becomes Collateral Accountsubject to a Mortgage pursuant to this Section 8.06(a) on which a Building or Manufactured (Mobile) Home is located and a policy of flood insurance that covers any such parcel that is located in a “special flood hazard area” as defined in the Flood Insurance Laws and (2) if reasonably requested by the Administrative Agent with respect to each parcel of real property that becomes Collateral subject to a Mortgage pursuant to this Section 8.06(a), provide the Lenders with (x) title and extended coverage insurance covering such interest in real property in an amount equal to the extent usedestimated fair market value of such interest in real property (or such other amount as shall be reasonably acceptable by the Administrative Agent) as well as a current ALTA survey thereof, pursuant to the terms of the Guarantortogether with a surveyor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, certificate and (By) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing any consents or anything to the contrary in this Credit Agreement estoppels reasonably deemed necessary or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected advisable by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received Administrative Agent in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinMortgage.
Appears in 2 contracts
Sources: Credit Agreement (Exterran Corp), Credit Agreement (Exterran Holdings Inc.)
Collateral. Subject to (a) The Borrower, as security for the terms of the applicable Collateral Documents, to secure the prompt payment and performance of the Secured Obligations hereunderwhen due, pursuant hereby assigns, conveys, transfers, delivers and sets over to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantIssuing Lender, and shall pledge and/or assign by way of security, grants to the Administrative Agent, for the benefit of each Issuing Lender a Lien on and a security interest in all assets of the Secured PartiesBorrower other than its books and records and its right, as applicable, a first priority, security title and interest and ▇▇▇▇ in and on its interests in the following, whether (now owned existing or hereafter acquired or arising:) in, to and under the Regulatory Account and the Administrative Account, including the Borrower’s right, title and interest (now existing or hereafter acquired or arising) in, to and under the following (collectively, the “Collateral”):
(i) any the Borrower’s interest, if any, in the Reinsurance Trust Account; provided, that such Lien and security interest is subject in all Unfunded Capital Commitments cases and in every respect to the rights of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on Reinsurance Trustee in such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretointerest;
(ii) the Surplus Account, and all Cash, securities, Instruments and other property held in the Surplus Account from time to time, and all certificates and Instruments, if any, from time to time representing the Surplus Account or any property therein. Notwithstanding the status of the Surplus Account and financial assets as Collateral, the Surplus Account and such assets shall remain available to make payments in the priority and to the recipients identified pursuant tothe Priority of Payments. In addition, the Issuing Lender agrees not to issue any Notice of Exclusive Control (as defined in the Securities Account Control Agreement) unless an Event of Default has occurred and is continuing. The Issuing Lender hereby authorizes any disposition of property from the Surplus Account free of any security interest if, and only to the extent relating to that, such disposition is made, and the Unfunded Capital Commitments proceeds are applied, in accordance with the Priority of the Investors constituting Collateral in clause Payments;
(iiii) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Lettersall rights, if any, of such Investors and the Borrower in (zA) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toCash, in each case of clauses (x)securities, (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security Instruments and other property with respect held or deemed to such Collateral;
(iv) each Collateral Account, including but not limited to be held in any and all funds and financial assets on deposit therein express or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, constructive trust established pursuant to the terms of the Guarantor’s Governing Documents, Reinsurance Agreement from time to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreementtime, and (B) the proceeds of such withdrawn funds (the items in (A) all certificates and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX InsidersInstruments, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include from time to time representing any Portfolio Investment, any Portfolio Assets such express or constructive trust or any Excluded Proceedsproperty therein; provided, (iii) that such Lien and security interest is subject in all cases and in every respect to the term “Collateral” shall not include any collateral posted or received rights of the Ceding Company in connection with the Swap Agreements, such rights;
(iv) any and all of the Collateral following, whether now existing or hereafter arising and wheresoever the same may be subject to Permitted Lienslocated: all rights of the Borrower under the Transaction Documents, accounts (other than the Regulatory Account and the Reinsurance Trust Account), chattel paper, deposit accounts, documents, equipment, general intangibles, goods, instruments, inventory, investment property, letters of credit, letter-of-credit rights, payment intangibles, securities accounts and supporting obligations;
(v) a all other property or rights delivered or assigned by the Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition on its behalf to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject Issuing Lender from time to control agreements time under this Agreement or other restrictions and otherwise, to secure or guarantee payment of the Secured Obligations; and
(vi) to the Administrative Agent extent not covered above, all products and proceeds of, and all dividends, collections, earnings, accruals, and other payments with respect to, any or all of the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 2 contracts
Sources: Reimbursement Agreement (Protective Life Insurance Co), Reimbursement Agreement (Protective Life Corp)
Collateral. Subject As collateral security for the payment in full when due (whether at stated maturity, by acceleration or otherwise), of its Secured Obligations, each Obligor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, Agent for the benefit of each of the Secured Parties, Parties as applicable, hereinafter provided a first priority, security interest in all of such Obligor’s right, title and ▇▇▇▇ in interest in, to and on its interests in under all of such Obligor’s personal property and assets, including the following, in each case whether tangible or intangible, wherever located, and whether now owned by such Obligor or hereafter acquired and whether now existing or arising:hereafter coming into existence (all of the property described in this Section 4, other than the property excluded pursuant to the proviso to this Section 4, being collectively referred to herein as “Collateral”):
(ia) any all Accounts, all Chattel Paper, all Deposit Accounts, all Documents, all General Intangibles (including all Intellectual Property), all Instruments (including all Promissory Notes), all Portfolio Investments, all Pledged Debt, all Pledged Equity Interests, all Investment Property not covered by the foregoing (including all Securities, all Securities Accounts and all Unfunded Capital Commitments Security Entitlements with respect thereto and Financial Assets carried therein, all Commodity Accounts and Commodity Contracts, and, for the avoidance of doubt, all of such Obligor’s interest in the limited liability company or membership interests of each Subsidiary owned by such Obligor, all of such Obligor’s right to participate in the management of the Investorsbusiness and affairs of each such issuer or otherwise control each such Subsidiary, whether now or hereafter committedand all of such Obligor’s rights as a member of each such Subsidiary), all letters of credit and Letter-of-Credit Rights, all Money and all Goods (including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors Inventory and to issue Investor Capital Calls with respect theretoEquipment), and all Commercial Tort Claims;
(iib) to the extent relating related to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveany Collateral, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoSupporting Obligations;
(iiic) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under related to any of the foregoing Collateral and any and Collateral, all security books, correspondence, credit files, records, invoices and other property with respect papers (including all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Obligor or any computer bureau or service company from time to time acting for such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretoObligor); and
(vd) any and all proceeds Proceeds of any of the foregoing Collateral includingCollateral. PROVIDED, without limitationHOWEVER, all that in no event shall the security interest granted under this Section 4 attach to (and there shall be excluded from the definition of the records of the Guarantor concerning any of the foregoing “Collateral; excluding ”) (A) any funds properly withdrawn from contract, property rights, obligation, instrument or agreement to which an Obligor is a Collateral Account party (or that could be withdrawn pursuant to any of its rights or interests thereunder) if the Credit Agreement if deposited grant of such security interest would constitute or credited to result in either (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Obligor therein or (ii) a Collateral Account) to the extent used, breach or termination pursuant to the terms of the Guarantor’s Governing Documentsof, to purchase Portfolio Investments or a default under, any such contract, property rights, obligation, instrument or agreement (other than Permitted Investments deposited in or credited to the extent that any such accountterms would be rendered ineffective by Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code as in effect in the relevant jurisdiction), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) any Excluded Assets, and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or notwithstanding anything to the contrary provided in this Credit Agreement or any other Loan Document (i) Agreement, the term “Collateral” shall not include include, and the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts Obligors shall not be subject deemed to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have granted a security interest in, any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinExcluded Assets.
Appears in 2 contracts
Sources: Guarantee, Pledge and Security Agreement (Barings Capital Investment Corp), Guarantee, Pledge and Security Agreement (Barings BDC, Inc.)
Collateral. (i) Subject to the terms proviso below, each of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements Parent and the other related documents, the Guarantor shall grantBorrower shall, and shall pledge and/or assign by way of securitycause each other Loan Party to, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇▇ in and ▇ ▇▇▇▇ pursuant to the Security Instruments on substantially all of its interests Property located in the following, whether United States now owned or at any time hereafter acquired by it or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committedother Loan Party, including but not limited to (A) all Equipment, Accounts, Chattel Paper, Documents, General Intangibles, Instruments and Inventory (as each such term is defined in the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors UCC), (B) all real property and to issue Investor Capital Calls with respect thereto;(C) the Equity Interests in each Domestic Subsidiary and Foreign Subsidiary; and
(ii) subject to the extent relating proviso below, upon the formation or acquisition of any Significant Domestic Subsidiary or upon any Subsidiary becoming a Significant Domestic Subsidiary after the Initial Availability Date, the Borrower shall promptly:
(A) cause such Significant Domestic Subsidiary to ▇▇▇▇▇ ▇ ▇▇▇▇ pursuant to the Unfunded Capital Commitments Security Instruments on substantially all of its Property located in the Investors constituting Collateral in clause (i) aboveUnited States now owned or at any time hereafter acquired by it, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of Equipment, Accounts, Chattel Paper, Documents, General Intangibles, Instruments, and Inventory (as each such term is defined in the records of UCC);
(B) pledge, or cause the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant appropriate Person to the Credit Agreement if deposited or credited to a Collateral Account) to the extent usedpledge, pursuant to the terms Guaranty and Collateral Agreement or the Pledge Agreement, as applicable, all of the Guarantor’s Governing DocumentsEquity Interests in such Significant Domestic Subsidiary (and, to purchase Portfolio Investments the extent certificated, deliver original stock certificates or other certificates evidencing the capital stock of such entity, together with an appropriate undated stock power for each certificate, duly executed in blank by the registered owner thereof);
(C) cause such Significant Domestic Subsidiary to grant a Mortgage on any real property owned by such Significant Domestic Subsidiary; and
(D) execute and deliver, or cause such Significant Domestic Subsidiary to execute and deliver, such other than Permitted Investments deposited in additional documents and certificates as shall reasonably be requested by the Administrative Agent; and
(iii) subject to the proviso below, upon the formation or credited acquisition of any Foreign Subsidiary or any Domestic Subsidiary that is not a Significant Domestic Subsidiary after the Initial Availability Date, Parent and the Borrower shall promptly:
(A) pledge, or cause the appropriate Person to any such account)pledge, pursuant to the Pledge Agreement, (1) 65% of the voting capital stock and 100% of the non-voting capital stock of each first-tier Foreign Subsidiary that is a CFC (and, to make payments the extent certificated and to the extent that delivery of such certificates is not prohibited due to a Governmental Requirement, deliver original stock certificates or distributions other certificates evidencing 65% of the voting capital stock and 100% of the non-voting capital stock of such entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (2) 100% of the capital stock of each Domestic Subsidiary that is not a Significant Domestic Subsidiary and each Foreign Subsidiary that is not a CFC or a Subsidiary of a CFC (and, to Investors the extent certificated, deliver original stock certificates or other certificates evidencing the capital stock of such entity, together with an appropriate undated stock power for each certificate duly executed in accordance with blank by the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and registered owner thereof); and
(B) execute and deliver, or cause such Foreign Subsidiary or Domestic Subsidiary, as applicable, to execute and deliver, such other additional documents and certificates as shall reasonably be requested by the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding Administrative Agent; provided that the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document clauses (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion), (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, and (iii) the term “Collateral” shall not include any collateral posted require the creation or received perfection of pledges of, security interests in connection with the Swap Agreementsor Mortgages on, (ivA) the Collateral may be Equity Interests in, and any Property of, any ABS Subsidiary, (B) any real property, whether leasehold interests or owned real property, located in any jurisdiction other than the United States, (C) any leasehold interests or any owned real property that has a book value of less than $5,000,000 on an individual basis (provided, however, if in the aggregate, the book value of all real property owned by any Loan Party or Restricted Subsidiary and not subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.a
Appears in 2 contracts
Sources: Credit Agreement (Exterran Corp), Credit Agreement (Exterran Holdings Inc.)
Collateral. Subject (a) The parties hereto intend that this Agreement constitute a security agreement and the transactions effected hereby constitute secured loans by the Lenders to the terms of Borrower under Applicable Law. As collateral security for the applicable Collateral Documentsprompt, to secure the complete and indefeasible payment and performance in full when due, whether by lapse of time, acceleration or otherwise, of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, Borrower hereby grants to the Administrative Agent, as agent for the benefit of each of the Secured Parties, as applicable, a first priority, lien on and security interest in all of the Borrower’s right, title and ▇▇▇▇ in interest in, to and on its interests in under the following, whether now existing or owned or hereafter arising or acquired or arising:by the Borrower (collectively, the “Collateral”):
(i) any the Receivables and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, related Contracts (including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors service the Receivables in connection therewith) and to issue Investor Capital Calls any accounts or obligations evidenced thereby, any guarantee thereof, all Collections and all monies due (including any payments made under any guarantee or similar credit enhancement with respect theretoto any such Receivables) or to become due or received by any Person in payment of any of the foregoing on or after the related Cutoff Date;
(ii) the Financed Vehicles related to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral such Receivables (including Financed Vehicles that have been repossessed) or in clause (i) aboveany document or writing evidencing any security interest in any Financed Vehicle and each security interest in each Financed Vehicle securing each such Receivable, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, including all proceeds from any sale or other disposition of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoFinanced Vehicles;
(iii) any and all agreements, instruments and other documents of every kind or description the Account Collateral (subject to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property Blocked Account Control Agreement, with respect to such Collateralthe Remittance Account, and subject to the Control Agreement, with respect to the Collection Account and the Hedge Reserve Account);
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; andHedge Collateral;
(v) any all Receivable Files, the Schedule of Receivables, and all proceeds documents, agreements and instruments included in the Receivable Files, including rights of any recourse of the Borrower against Lendbuzz, Lendbuzz Funding, and/or any Dealer with respect to the Receivables;
(vi) all Records, documents and writings evidencing or related to the Receivables or the Contracts;
(vii) all rights to payment under all Insurance Policies with respect to a Financed Vehicle, including any monies collected from whatever source in connection with any default of an Obligor with respect to a Financed Vehicle and any proceeds from claims or refunds of premiums on any Insurance Policy;
(viii) all guaranties, indemnities, warranties, insurance (and proceeds and premium refunds thereof) and other agreements or arrangements of whatever character from time to time supporting or securing payment of the Receivables, whether pursuant to the related Contracts or otherwise;
(ix) all rights to payment under all service contracts and other contracts and agreements associated with the Receivables;
(x) all security interests, Liens, guaranties and other encumbrances in favor of or assigned or transferred to the Borrower in and to the Receivables and Financed Vehicles;
(xi) all deposit accounts, monies, deposits, funds, accounts and instruments relating to the foregoing Collateral (subject to the Blocked Account Control Agreement and the Control Agreement);
(xii) the Purchase Agreement (including each Purchase Agreement Supplement) and remedies thereunder and the assignment to the Administrative Agent of all UCC financing statements filed by the Borrower against Lendbuzz Funding under or in connection with the Purchase Agreement;
(xiii) all other personal and fixture property or assets of the Borrower of every kind and nature including, without limitation, all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts, chattel paper (whether tangible or electronic), deposit accounts, securities accounts, securities entitlements, letter-of-credit rights, commercial tort claims, securities and all other investment property, supporting obligations, money, any other contract rights or rights to the payment of money, insurance claims and proceeds, and all general intangibles (including all payment intangibles) (each as defined in the UCC); and
(xiv) all income and proceeds of the records foregoing.
(b) The grant under this Section does not constitute and is not intended to result in a creation or an assumption by the Administrative Agent or any other Secured Party of any obligation of the Guarantor concerning Borrower or any other Person in connection with any or all of the foregoing Collateral; excluding (A) Collateral or under any funds properly withdrawn from a Collateral Account (agreement or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)instrument relating thereto. Notwithstanding the foregoing or anything Anything herein to the contrary in this Credit Agreement or any other Loan Document notwithstanding, (i) the term “Collateral” Borrower shall not include remain liable under the Unfunded Capital Commitments of the SOX Insiders, including but not limited Contracts to the right extent set forth therein to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests perform all of its duties and obligations thereunder to the SOX Insiders, same extent as if any, unless so elected by the Guarantor in its discretionthis Agreement had not been executed, (ii) the term “Collateral” exercise by the Administrative Agent of any of its rights in the Collateral shall not include release the Borrower from any Portfolio Investment, any Portfolio Assets of its duties or any Excluded Proceeds, obligations under the Collateral and (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) none of the Administrative Agent or any other Secured Party shall have any obligations or liability under the Collateral by reason of this Agreement, nor shall any of the Administrative Agent or any other Secured Party be obligated to perform any of the obligations or duties of the Borrower thereunder or to take any action to collect or enforce any claim for payment assigned hereunder. Each of Lendbuzz, Lendbuzz Funding, and the Secured Parties Borrower represents and warrants as to itself that each remittance of Collections by ▇▇▇▇▇▇▇▇, Lendbuzz Funding, or the Borrower to the Administrative Agent or any Lender hereunder will have been (A) in payment of a debt incurred by the Borrower in the ordinary course of business or financial affairs of the Lenders and the Borrower and (B) made in the ordinary course of business or financial affairs of the Lenders and the Borrower.
(c) Notwithstanding the foregoing grant of security interest, no account, instrument, chattel paper or other obligation or property of any kind due from, owned by or belonging to a Sanctioned Person shall not have any Lien on any property that is not “be Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Loan Agreement (Lendbuzz Inc.), Loan Agreement (Lendbuzz Inc.)
Collateral. Subject The Secured Obligations shall be secured by valid, perfected, and enforceable Liens on all right, title, and interest of the Borrower in the following personal property: all Receivables and all letter of credit rights and insurance relating to such Receivables; all Purchase Agreements; all documents of title with respect to any Qualified Commodity including, without limitation, warehouse receipts (both tangible and electronic); all storage agreements relating to Qualified Commodities; Renewable Identification Numbers; Hedging Accounts and Hedging Agreements; investment property, deposit accounts, Qualified Commodities, general intangibles relating to the terms foregoing; chattel paper, including leases for Precious Metals and all rights, title and benefit of the applicable Collateral DocumentsBorrower under such leases, rights to secure the payment merchandise and performance other goods which is represented by, arises from, or relates to any of the Obligations hereunderforegoing; supporting obligations and security interests relating to the foregoing; monies, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantpersonal property, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each interests in personal property of the Secured PartiesBorrower of any kind or description held by any Lender, as applicableand all dividends and distributions on or other rights in connection with any such property; supporting evidence and documents relating to any of the above-described property; and accessions and additions to, a first priorityand substitutions and replacements of, security interest any and ▇▇▇▇ all of the foregoing, in and on its interests in the following, each case whether now owned or hereafter acquired or arising:
(i) any , and all Unfunded Capital Commitments proceeds thereof. The Borrower acknowledges and agrees that the Liens on the Collateral shall be granted to the Administrative Agent for the benefit of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments holders of the Investors constituting Collateral in clause (i) aboveSecured Obligations, (x) the Constituent Documentsand shall be valid and perfected first priority Liens subject, (y) the Subscription Agreements and Side Lettershowever, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toto Liens permitted by Section 8.8 hereof, in each case of clauses (x), (y) pursuant to one or more Collateral Documents from the Borrower in form and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description substance satisfactory to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinAgent.
Appears in 2 contracts
Sources: Credit Agreement (StoneX Group Inc.), Credit Agreement (StoneX Group Inc.)
Collateral. Subject to (a) The Borrower, as security for the terms of the applicable Collateral Documents, to secure the prompt payment and performance of the Secured Obligations hereunderwhen due, pursuant hereby assigns, conveys, transfers, delivers and sets over to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantIssuing Lender, and shall pledge and/or assign by way of security, grants to the Administrative Agent, for the benefit of each Issuing Lender a Lien on and a security interest in all assets of the Secured PartiesBorrower other than its books and records and its right, as applicable, a first priority, security title and interest and ▇▇▇▇ in and on its interests in the following, whether (now owned existing or hereafter acquired or arising:) in, to and under the Regulatory Account and the Administrative Account, including the Borrower’s right, title and interest (now existing or hereafter acquired or arising) in, to and under the following (collectively, the “Collateral”):
(i) any the Borrower’s interest, if any, in the Reinsurance Trust Account; provided, that such Lien and security interest is subject in all Unfunded Capital Commitments cases and in every respect to the rights of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on Reinsurance Trustee in such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretointerest;
(ii) the Surplus Account, and all Cash, securities, Instruments and other property held in the Surplus Account from time to time, and all certificates and Instruments, if any, from time to time representing the Surplus Account or any property therein. Notwithstanding the status of the Surplus Account and financial assets as Collateral, the Surplus Account and such assets shall remain available to make payments in the priority and to the recipients identified pursuant to the Priority of Payments. In addition, the Issuing Lender agrees not to issue any Notice of Exclusive Control (as defined in the Securities Account Control Agreement) unless an Event of Default has occurred and is continuing. The Issuing Lender hereby authorizes any disposition of property from the Surplus Account free of any security interest if, and only to the extent relating to that, such disposition is made, and the Unfunded Capital Commitments proceeds are applied, in accordance with the Priority of the Investors constituting Collateral in clause Payments;
(iiii) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Lettersall rights, if any, of such Investors and the Borrower in (zA) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toCash, in each case of clauses (x)securities, (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security Instruments and other property with respect held or deemed to such Collateral;
(iv) each Collateral Account, including but not limited to be held in any and all funds and financial assets on deposit therein express or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, constructive trust established pursuant to the terms of the Guarantor’s Governing Documents, Reinsurance Agreement from time to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreementtime, and (B) the proceeds of such withdrawn funds (the items in (A) all certificates and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX InsidersInstruments, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include from time to time representing any Portfolio Investment, any Portfolio Assets such express or constructive trust or any Excluded Proceedsproperty therein; provided, (iii) that such Lien and security interest is subject in all cases and in every respect to the term “Collateral” shall not include any collateral posted or received rights of the Ceding Company in connection with the Swap Agreements, such rights;
(iv) any and all of the Collateral following, whether now existing or hereafter arising and wheresoever the same may be subject located: all rights of the Borrower under the Transaction Documents to Permitted Lienswhich it is a party, accounts (other than the Regulatory Account and the Reinsurance Trust Account), chattel paper, deposit accounts, documents, equipment, general intangibles, goods, instruments, inventory, investment property, letters of credit, letter-of-credit rights, payment intangibles, securities accounts and supporting obligations;
(v) a all other property or rights delivered or assigned by the Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition on its behalf to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject Issuing Lender from time to control agreements time under this Agreement or other restrictions and otherwise, to secure or guarantee payment of the Secured Obligations; and
(vi) to the Administrative Agent extent not covered above, all products and proceeds of, and all dividends, collections, earnings, accruals, and other payments with respect to, any or all of the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 2 contracts
Sources: Reimbursement Agreement (Protective Life Insurance Co), Reimbursement Agreement (Protective Life Corp)
Collateral. Subject to the terms of the applicable Collateral Documents, to To secure the full and complete payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements Borrower, Holdings, Alamosa Texas GP, Alamosa Wisconsin GP, Alamosa Texas LP, Alamosa Finance and the other related documents, the Guarantor shall grantOperating Subsidiaries will (as applicable), and shall pledge and/or assign by way will cause each of securitythe Loan Parties (as applicable) to, grant to the Administrative Agent, Agent for the benefit of each the Administrative Agent and the Lenders a perfected, first priority Lien on all of the Secured Partiesits right, as applicable, a first priority, security title and interest and ▇▇▇▇ in and on its interests in to the followingfollowing Properties and assets, whether now owned or hereafter acquired or arising:acquired, pursuant to the Security Documents (which constitutes the "Collateral"):
(ia) any and all Unfunded Capital Commitments Stock of the InvestorsBorrower and the Subsidiaries of Holdings and the Borrower owned by Holdings, whether now the Borrower or hereafter committedany Subsidiary of Holdings or the Borrower, including but not limited to the right to draw down Investor other than Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoStock of Unrestricted Subsidiaries of Holdings;
(iib) to the extent relating to the Unfunded Capital Commitments all of the Investors constituting Collateral Property (as such Property is more specifically described in clause (i) abovethe Security Documents), (x) the Constituent Documents, (y) the Subscription Agreements including tangible and Side Letters, if anyintangible property and real and personal property, of such Investors Holdings and (z) any the Borrower and all guaranties each Subsidiary of such Investors’ obligations under Holdings or the Constituent Documents and Subscription Agreements including but not limited toBorrower, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any than Property of the foregoing Collateral and any and all security and other property with respect to such Collateral;
Unrestricted Subsidiaries of Holdings, including, without limitation, the following: Investments (iv) each Collateral Accountincluding certificates of deposit); accounts; inventory (including, without limitation, work in process); equipment; deposit accounts (including but not limited to any and all funds and financial assets on deposit therein or credited theretocash collateral accounts); and
brokerage accounts; instruments; Operating Assets; the Sprint Agreements; contract rights (v) any and all proceeds of any of the foregoing Collateral including, without limitation, all contracts relating to the construction or operation of the records Service Area Network, including rights of way, easements, leases and all related contracts, and all consents and waivers necessary or appropriate from all parties to such contracts, including, without limitation, all consents and waivers necessary or appropriate to permit the collateral assignment of or security interest granted in such contracts); customer deposits in connection with purchase orders; general intangibles; real Property and interests therein (if and to the extent required pursuant to Section 5.4); instruments; chattel paper; Permits; Intellectual Property; and intercompany Debt (including, without limitation, Debt of the Guarantor concerning Borrower or any of its Subsidiaries owed to or held by Holdings); provided, however, that Holdings shall not be required to grant to the foregoing Collateral; excluding Administrative Agent a security interest in (i) any identifiable cash proceeds of the issuance of the Holdings Public Offering or any identifiable cash proceeds of the issuance of the Holdings Senior Notes, (ii) any dividends, distributions or other amounts received by Holdings from its Unrestricted Subsidiaries, in each case (i.e., as to each of clause (i) and clause (ii) preceding) if and to the extent (but only if and to the extent) that such proceeds (A) any funds properly withdrawn from a Collateral Account (are not, and are not required to be, contributed or that could be withdrawn pursuant otherwise paid or transferred to the Credit Agreement if deposited Borrower or credited to a Collateral Account) to the extent used, pursuant to the terms any Subsidiary of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, Borrower and (B) the proceeds are held in a segregated deposit, securities or similar account of such withdrawn funds Holdings and are not commingled with other cash, securities or properties of Holdings (the items sum of the amounts in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document clause (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, and clause (ii) the term “Collateral” shall not include any Portfolio Investmentpreceding being called "Holdings Unrestricted Cash"), any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted general intangibles or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower accounts constituting or the Guarantor may maintain other bank accounts or securities accounts in addition relating to the Collateral Accounts that will not be considered “Collateral” Approved Services Agreement other than all rights to receive fees and such other accounts shall not be subject amounts payable to control agreements Holdings or other restrictions its Affiliates thereunder and all proceeds thereof; and
(vic) all cash and non-cash proceeds and products of any of the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 2 contracts
Sources: Credit Agreement (Alamosa Holdings Inc), Credit Agreement (Alamosa PCS Holdings Inc)
Collateral. Subject Each Pledgor hereby grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the ratable benefit of each of the Secured Parties, as applicable, a first priority, security interest in such Pledgor’s right, title and ▇▇▇▇ interest in and on its interests in to the following, in each case, as to each type of property described below, whether now owned or hereafter acquired or arising:
(i) any by such Pledgor, wherever located, and all Unfunded Capital Commitments of the Investors, whether now or hereafter committedexisting or arising (collectively, including but not limited the “Collateral”):
(a) the following (the “Security Collateral”): (A) the Initial Pledged Equity, (B) the Equity Interests in any Guarantor from time to time hereafter acquired or created (collectively, the right “Additional Pledged Equity” and together with the Initial Pledged Equity, the “Pledged Equity”), (C) the certificates (if any) representing the Initial Pledged Equity and the Additional Pledged Equity, and (D) all dividends, distributions, return of capital, cash, instruments and other property from time to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Initial Pledged Equity and to issue Investor Capital Calls the Additional Pledged Equity, and all subscription warrants, rights or options issued thereon or with respect thereto;
(iib) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause all books and records (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, customer lists, credit files, printouts and other computer output materials and records) of such Pledgor pertaining to any of the Collateral; and
(c) all proceeds of, collateral for, income, royalties and other payments now or hereafter due and payable with respect to, and supporting obligations relating to, any and all of the records Collateral (including, without limitation, proceeds, collateral and supporting obligations that constitute property of the Guarantor concerning types described in clauses (a) and (b) of this Section 1 and this clause (c)) and, to the extent not otherwise included, all payments under insurance (whether or not the Collateral Agent is the loss payee thereof), or any indemnity, warranty or guaranty, payable by reason of loss or damage to or otherwise with respect to any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Credit Agreement (Select Income Reit), Pledge Agreement (Select Income Reit)
Collateral. Subject to the terms of the applicable Collateral Documents, to To secure the full and complete payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements Borrower, Holdings and the other related documents, the Guarantor shall grantOperating Subsidiaries will (as applicable), and shall pledge and/or assign by way will cause each of securitythe Loan Parties (as applicable) to, grant to the Administrative Agent, Agent for the benefit of each the Administrative Agent and the Lenders a perfected, first priority Lien on all of the Secured Partiesits right, as applicable, a first priority, security title and interest and ▇▇▇▇ in and on its interests in to the followingCollateral, whether now owned or hereafter acquired or arisingacquired, pursuant to the Security Documents, including, without limitation, the following:
(ia) any and all Unfunded Capital Commitments Stock of the InvestorsBorrower and the Subsidiaries of Holdings and the Borrower owned by Holdings, whether now the Borrower or hereafter committedany Subsidiary of Holdings or the Borrower, including but not limited to the right to draw down Investor other than Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoStock of Unrestricted Subsidiaries of Holdings;
(iib) to the extent relating to the Unfunded Capital Commitments all of the Investors constituting Collateral Property (as such Property is more specifically described in clause (i) abovethe Security Documents), (x) the Constituent Documents, (y) the Subscription Agreements including tangible and Side Letters, if anyintangible property and real and personal property, of such Investors Holdings and (z) any the Borrower and all guaranties each Subsidiary of such Investors’ obligations under Holdings or the Constituent Documents and Subscription Agreements including but not limited toBorrower, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any than Property of the foregoing Collateral and any and all security and other property with respect to such Collateral;
Unrestricted Subsidiaries of Holdings, including, without limitation, the following: Investments (iv) each Collateral Accountincluding certificates of deposit); accounts; inventory (including, without limitation, work in process); equipment; deposit accounts (including but not limited to any and all funds and financial assets on deposit therein or credited theretocash collateral accounts); and
brokerage accounts; instruments; Borrower-Owned Operating Assets; the Sprint Agreements; contract rights (v) any and all proceeds of any of the foregoing Collateral including, without limitation, all contracts relating to the construction or operation of the records Service Area Network, including rights of way, easements, leases and all related contracts, and all consents and waivers necessary or appropriate from all parties to such contracts, including, without limitation, all consents and waivers necessary or appropriate to permit the collateral assignment of or security interest granted in such contracts); customer deposits in connection with purchase orders; general intangibles; real Property and interests therein (if and to the extent required pursuant to Section 5.4); instruments; chattel paper; Permits; Intellectual Property; and intercompany Debt (including, without limitation, Debt of the Guarantor concerning Borrower or any of its Subsidiaries owed to or held by Holdings); provided, however, that Holdings shall not be required to grant to the Administrative Agent a security interest in the proceeds of the issuance of the Holdings Senior Notes; and
(c) all cash and non-cash proceeds and products of any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 2 contracts
Sources: Credit Agreement (Alamosa PCS Holdings Inc), Credit Agreement (Alamosa PCS Holdings Inc)
Collateral. Subject to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the (a) The Secured Parties irrevocably authorize Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest at its option and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arisingdiscretion:
(i) to release any Lien (A) on all Collateral upon Full Satisfaction of all the Obligations and all Unfunded Capital Commitments termination of the InvestorsCommitments, whether now (B) with respect to any Collateral that is sold or hereafter committedotherwise Disposed of to a Person other than an Obligor pursuant to a Disposition permitted by Section 6.4 (other than any Disposition permitted by clause (d) of Section 6.4), including but not limited (C) on Receivables and Receivables Related Property to the right extent required pursuant to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and any Receivables Intercreditor Agreement, or (D) subject to issue Investor Capital Calls with respect theretoSection 10.2, as may be approved, authorized, or ratified in writing by the Required Lenders;
(ii) to the extent relating subordinate any Lien on any Collateral to the Unfunded Capital Commitments holder of any Lien on such property that is permitted by clause (f) or (k) of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, definition of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;“Permitted Encumbrances”; and
(iii) to enter into each Subordination Agreement, and perform all obligations thereunder, respectively, and to enter into any and all agreements, instruments and other documents amendments of every kind or description to such Subordination Agreements which do not materially modify the extent evidencing or supporting obligations under any rights of the foregoing Collateral Secured Parties thereunder, and any and all security and other property with respect agree to such Collateralbe bound by the terms thereof;
(iv) each to enter into any Receivables Intercreditor Agreement, and perform all obligations thereunder, respectively, and to enter into any amendments of such Receivables Intercreditor Agreement which do not materially modify the rights of the Secured Parties thereunder, and the Secured Parties agree to be bound by the terms thereof;
(v) to confirm in writing whether specific items or types of Obligors’ property are or are not included in the Collateral Account, including but not limited pursuant to any and all funds and financial assets on deposit therein or credited theretothe Loan Documents; and
(vi) to release any Guarantor from its obligations under any Guaranty Agreement if such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents.
(b) Upon request by Administrative Agent at any time, the Secured Parties will confirm in writing Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under any Guaranty Agreement pursuant to this Section 9.10.
(c) Administrative Agent, at the sole expense of Obligors, shall execute and deliver to the Obligors all releases or other documents reasonably necessary or desirable to evidence or effect any release of Liens or release of Guaranty Agreement authorized under Section 9.10(a); provided, that (i) Administrative Agent shall not be required to execute any document necessary to evidence such release authorized under clause (i)(B) or (v) of Section 9.10(a) unless a Responsible Officer of Administrative Borrower shall certify in writing to Administrative Agent that the transaction requiring such release is permitted under the Loan Documents (it being acknowledged that Administrative Agent may rely on any such certificate without further enquiry), (ii) Administrative Agent shall not be required to execute any document necessary to evidence such release on terms that, in Administrative Agent’s opinion, would expose Administrative Agent to liability or create any obligation or entail any consequence other than the release of such Lien without recourse, representation, or warranty, and (iii) no such release shall in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of any Obligors in respect of) all interests retained by Obligors, including, the proceeds of any of the foregoing Collateral including, without limitationsale, all of the records which shall continue to constitute part of the Guarantor concerning Collateral. To the extent Administrative Agent is required to execute any releases or other documents in accordance with this Section 9.10(c), Administrative Agent shall do so promptly upon request of Borrowers without the consent or further agreement of any Secured Party.
(d) Administrative Agent shall have no obligation whatsoever to any of the foregoing Secured Parties to assure that the Collateral exists or is owned by any Obligor or its Subsidiaries or is cared for, protected, or insured or has been encumbered, or that Administrative Agent’s Liens have been properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or to continue exercising, any of the rights, authorities and powers granted or available to Administrative Agent pursuant to any of the Loan Documents, it being understood and agreed that in respect of the Collateral; excluding , or any act, omission, or event related thereto, subject to the terms and conditions contained herein, Administrative Agent may act in any manner it may deem appropriate, in its sole discretion given Administrative Agent’s own interest in the Collateral in its capacity as one of the Lenders and that Administrative Agent shall have no other duty or liability whatsoever to any Secured Party as to any of the foregoing, except as otherwise provided herein.
(e) The Secured Parties hereby irrevocably authorize Administrative Agent, based upon the instruction of the Required Lenders, to (i) consent to, credit bid or purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any sale thereof conducted under the provisions of the Bankruptcy Code, including under Section 363 of the Bankruptcy Code, (ii) credit bid or purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any sale or other disposition thereof conducted under the provisions of the UCC, including pursuant to Section 9-610 or 9-620 of the UCC, or (iii) credit bid or purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any other sale or foreclosure conducted by Administrative Agent (whether by judicial action or otherwise) in accordance with applicable law. In connection with any such credit bid or purchase, (A) the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims being estimated for such purpose if the fixing or liquidation thereof would not unduly delay the ability of Administrative Agent to credit bid or purchase at such sale or other disposition of the Collateral and, if such claims cannot be estimated without unduly delaying the ability of Administrative Agent to credit bid, then such claims shall be disregarded, not credit bid, and not entitled to any funds properly withdrawn from a Collateral Account interest in the asset or assets purchased by means of such credit bid) and the Secured Parties whose Obligations are credit bid shall be entitled to receive interests (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) in the asset or assets so purchased (or that could be withdrawn pursuant to in the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms Equity Interests of the Guarantor’s Governing Documents, acquisition vehicle or vehicles that are used to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any consummate such accountpurchase), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) Administrative Agent, based upon the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments instruction of the SOX InsidersRequired Lenders, may accept non-cash consideration, including but not limited to the right to draw down Investor Capital Contributions on debt and equity securities issued by such Unfunded Capital Commitments, acquisition vehicle or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received vehicles and in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the therewith Administrative Agent and may reduce the Obligations owed to the Secured Parties shall not have (ratably based upon the proportion of their Obligations credit bid in relation to the aggregate amount of Obligations so credit bid) based upon the value of such non-cash consideration.
(f) The Secured Parties acknowledge and agree that, Rabobank or any Lien on of its Affiliates may at any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereintime be the Receivables Financier under the Receivables Financing Facility.
Appears in 2 contracts
Sources: Credit Agreement (Kellogg Co), Credit Agreement (WK Kellogg Co)
Collateral. Subject As security for the prompt performance, observance and payment in full of all Obligations, the Borrower hereby grants to the terms Bank a continuing security interest in, a lien upon and a right of setoff against, and the Borrower hereby assign, transfer, pledge and set over to the Bank the following (which together with any of the applicable Collateral DocumentsBorrower’s other property in which the Bank may at any time have a security interest or lien, whether pursuant to secure this Agreement or any supplement hereto, or otherwise, are herein collectively referred to as the payment and performance “Collateral”): All of the Obligations hereunderBorrower’s right, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements title and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the followingto all personal property, tangible and intangible, wherever located or situated and whether now owned owned, presently existing or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investorscreated, whether now or hereafter committedincluding, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors all: (a) Accounts; (b) Equipment; (c) Inventory; (d) financial assets and to issue Investor Capital Calls with respect thereto;
investment property; (iie) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) abovemoneys, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security securities and other property and the proceeds thereof, now or hereafter held or received by, or in transit to, the Bank from or for the Borrower, whether for safekeeping, pledge, custody, transmission, collection or otherwise, and all of the Borrower’s deposits (general or special), balances, sums and credits with or in the control of the Bank at any time existing; (f) rights, remedies, security and liens, in, to and in respect of the Accounts and other Collateral, including, without limitation, rights of stoppage in transit, replevin, repossession and reclamation and other rights and remedies of an unpaid vendor, lienor or secured party, guaranties or other contracts of suretyship with respect to such the Accounts and other Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein deposits or credited thereto; and
(v) any and all proceeds other security for the obligation of any of the foregoing Collateral Account Debtor, and credit and other insurance; (g) goods relating to, or which by sale have resulted in, Accounts including, without limitation, all of goods described in invoices, documents, contracts or instruments with respect to, or otherwise representing or evidencing, any Accounts or other Collateral, including without limitation, all returned, reclaimed or repossessed goods; (h) Deposit Accounts (whether or not maintained with the Bank); (i) books, records of the Guarantor concerning (whether paper, computer or electronic), data, tapes, discs, other media, ledger cards, computer and software programs, files, access codes, records and procedure manuals relating thereto, together with all computer or other data processing equipment on which any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (is stored, and other property and general intangibles evidencing or that could be withdrawn pursuant relating to the Credit Agreement if deposited Accounts, Equipment, Inventory and any other Collateral or credited to a Collateral Accountany Account Debtor, together with the file cabinets or containers in which the foregoing are stored (“Records”); (j) to general intangibles of every kind and description, including without limitation, trade names and trademarks, and the extent used, pursuant to the terms goodwill of the Guarantor’s Governing Documentsbusiness symbolized thereby, to purchase Portfolio Investments patents, copyrights, licenses and federal, state and local tax refund claims of all kinds; (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, k) letter of credit rights; (l) commercial tort claims; and (Bm) the supporting obligations and products and proceeds of such withdrawn funds (the items foregoing, in (A) any form, including, without limitation, insurance proceeds and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing any claims against third parties for loss or anything damage to the contrary in this Credit Agreement or destruction of any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments or all of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 2 contracts
Sources: Loan and Security Agreement (Precision Aerospace Components, Inc.), Loan and Security Agreement (Precision Aerospace Components, Inc.)
Collateral. Subject to the terms of the applicable Collateral DocumentsExcept as specified in Schedule 2.16(a) hereto, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arisingbe secured at all times by:
(i) a first priority perfected security interest in and lien upon all presently owned and hereafter acquired tangible and intangible personal property and fixtures of each Borrower, including without limitation any intercompany notes, obligations or agreements, subject only to (A) any Permitted Liens and all Unfunded Capital Commitments (B) the exclusion of any License, except to the extent (if any) that such a security interest is permitted or not prohibited by the Act (as defined in Section 4.08), and the rules, regulations and policies of the InvestorsFCC (but including, whether now to the maximum extent permitted by law, all rights incident or hereafter committedappurtenant to any such License, including but not limited to without limitation the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments receive all proceeds derived or arising from such Investors and to issue Investor Capital Calls or in connection with respect theretothe sale, assignment or transfer thereof);
(ii) first mortgages on all presently owned and hereafter acquired real estate owned by each Borrower, subject only to the extent relating any Permitted Liens, together with mortgagee’s title insurance policies acceptable to the Unfunded Capital Commitments of the Investors constituting Administrative Agent and Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoAgent;
(iii) any and collateral assignments of or leasehold mortgages on all agreementsreal estate leases, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under in each case, in which any of the foregoing Borrowers now has or may in the future have an interest, subject only to any Permitted Liens, and such third party consents, lien waivers, non-disturbance agreements and estoppel certificates as Administrative Agent and Collateral Agent shall reasonably require, together with mortgagee’s title insurance policies acceptable to Administrative Agent and any and all security and other property with respect to such CollateralCollateral Agent;
(iv) a first priority perfected collateral assignment and/or pledge of all of the issued and outstanding Equity Securities of each Collateral Account, including but not limited to any Borrower and all funds warrants, options, and financial assets on deposit therein or credited theretoother rights to purchase such Equity Securities; and
(v) any first priority perfected collateral assignments of the Licenses and all proceeds of any of purchase agreements, construction contracts, management agreements, LMAs, programming agreements, licenses, permits, authorizations (except for licenses and permits issued by the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) FCC to the extent used, pursuant it is unlawful to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited grant a security interest in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents licenses and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (Apermits) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the as Administrative Agent and Collateral Agent shall reasonably deem necessary to protect the Secured Parties interests of Lenders, together with such third party consents, lien waiver and estoppel certificates as Administrative Agent and Collateral Agent shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, reasonably require and as provided thereinpermitted by the underlying document.
Appears in 2 contracts
Sources: Credit Agreement (Coconut Palm Acquisition Corp.), Credit Agreement (Coconut Palm Acquisition Corp.)
Collateral. The Collateral consists of the following:
2.1 Sixty-five percent (65%) in the aggregate of the shares of common stock of the Company, all such stock owned beneficially and of record by Pledgor and listed on Schedule I attached hereto and made a part hereof, and all cash, dividends, other securities, instruments, rights and other property at any time and from time to time received or receivable in respect thereof or in exchange for all or any part thereof, including without limitation, stock dividends, warrants, rights to subscribe, conversion rights, liquidating dividends and other stock rights, and in the event Pledgor receives any of the foregoing, Pledgor acknowledges that the same shall be received IN TRUST for Pledgee and agrees immediately to deliver the same to Pledgee in original form of receipt, together with any stock or bond powers, assignments, endorsements or other documents or instruments as Pledgee may reasonably request to establish, protect or perfect Pledgee's interest in respect of such Collateral; and
2.2 Subject to the terms of the applicable Collateral DocumentsSection 7.1.2 hereof, all other property hereafter delivered to secure the payment and performance Pledgee (or any agent or bailee holding on behalf of the Obligations hereunder, pursuant Pledgee) by Pledgor in substitution for or in addition to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral foregoing, all certificates and any instruments representing or evidencing such other property and all security cash, dividends, other securities, instruments, rights and other property at any time and from time to time received or receivable in respect thereof or in exchange for all or any part thereof, including without limitation, stock dividends, warrants, rights to subscribe, conversion rights, liquidating dividends and other stock rights, and in the event Pledgor receives any of the foregoing, Pledgor acknowledges that the same shall be received IN TRUST for Pledgee and agrees immediately to deliver the same to Pledgee in original form of receipt, together with any stock or bond powers, assignments, endorsements or other documents or instruments as Pledgee may request to establish, protect or perfect Pledgee's interest in respect to of such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all 2.3 All proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 2 contracts
Sources: Pledge Agreement (3-D Geophysical Inc), Pledge Agreement (3-D Geophysical Inc)
Collateral. Subject to the terms The Collateral shall consist of all right, title and interest of the applicable Collateral Documents, Company of every kind and nature in and to secure the payment and performance all of the Obligations hereunderfollowing property, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements assets and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each rights of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the followingCompany wherever located, whether now existing or hereafter arising, and whether now or hereafter owned or hereafter acquired by or arising:accruing or owing to the Company, and all proceeds and products thereof (including all proceeds in the Settlement Account and Cash and Collateral Account and Custodian Settlement Accounts from time to time):
(a) all Pledged Mortgages;
(b) all Pledged Securities;
(c) any commitments or other agreements issued by any private mortgage insurer or by the FHA or VA to insure or guarantee any Pledged Mortgage;
(d) all commitments of FNMA, FHLMC or other Persons to purchase Pledged Items from the Company or exchange Securities with the Company for Pledged Items;
(e) any options to sell or purchase Securities, future contracts, or any other interest rate protection products which directly or indirectly protect the Company against reductions in value of such Pledged Items due to changes in mortgage interest rates;
(f) the Settlement Account and Cash and Collateral Account, the Funding Account and any Custodian Settlement Accounts and any amounts standing to the credit of the Settlement Account and Cash and Collateral Account and any Custodian Settlement Accounts then in existence with Approved MBS Custodians, as described in Paragraph 7(c) below;
(g) all cash and Cash Equivalents held by the Credit Agent or Collateral Agent as security for the Secured Obligations;
(h) all Pledged Servicing;
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoPledged Servicing Sale Receivables;
(iij) all property related to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveforegoing, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, the right to service Pledged Mortgages while owned by the Company, all accounts and general intangibles of whatsoever kind so related and all documents or instruments delivered to the Credit Agent or the Collateral Agent in respect of any Pledged Item, including, without limitation, the right to receive all insurance proceeds and condemnation awards which may be payable in respect of the records premises encumbered by any Pledged Mortgage; and
(k) all proceeds and products of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 2 contracts
Sources: Security and Collateral Agency Agreement (Pulte Homes Inc/Mi/), Security and Collateral Agency Agreement (Pulte Homes Inc/Mi/)
Collateral. Subject (a) The parties hereto intend that this Agreement constitute a security agreement and the transactions effected hereby constitute secured loans by the Lenders to the terms of Borrower under Applicable Law. As collateral security for the applicable Collateral Documentsprompt, to secure the complete and indefeasible payment and performance in full when due, whether by lapse of time, acceleration or otherwise, of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, Borrower hereby grants to the Administrative Agent, as agent for the benefit of each of the Secured Parties, as applicable, a first priority, lien on and security interest in all of the Borrower’s right, title and ▇▇▇▇ in interest in, to and on its interests in under the following, whether now existing or owned or hereafter arising or acquired or arising:by the Borrower (collectively, the “Collateral”):
(i) any the Receivables and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, related Contracts (including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors service the Receivables in connection therewith) and to issue Investor Capital Calls any accounts or obligations evidenced thereby, any guarantee thereof, all Collections and all monies due (including any payments made under any guarantee or similar credit enhancement with respect theretoto any such Receivables) or to become due or received by any Person in payment of any of the foregoing on or after the related Cutoff Date;
(ii) the Financed Vehicles related to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral such Receivables (including Financed Vehicles that have been repossessed) or in clause (i) aboveany document or writing evidencing any security interest in any Financed Vehicle and each security interest in each Financed Vehicle securing each such Receivable, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, including all proceeds from any sale or other disposition of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoFinanced Vehicles;
(iii) any and all agreements, instruments and other documents of every kind or description the Account Collateral (subject to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property Blocked Account Control Agreement, with respect to such Collateralthe Remittance Account (so long as ▇▇▇▇▇ Fargo Bank, National Association is the Remittance Account Bank), and subject to the Control Agreement, with respect to the Collection Account);
(iv) each Collateral Accountall Hedge Collateral;
(v) all Receivable Files, the Schedule of Accounts, and all documents, agreements and instruments included in the Receivable Files, including but not limited rights of recourse of the Borrower against Lendbuzz, Lendbuzz Floorplan, and/or any Dealer with respect to the Receivables;
(vi) all Records, documents and writings evidencing or related to the Receivables or the Contracts;
(vii) all rights to payment under all Insurance Policies with respect to a Financed Vehicle, including any monies collected from whatever source in connection with any default of a Dealer with respect to a Financed Vehicle and any proceeds from claims or refunds of premiums on any Insurance Policy;
(viii) all funds guaranties, indemnities, warranties, insurance (and financial assets on proceeds and premium refunds thereof) and other agreements or arrangements of whatever character from time to time supporting or securing payment of the Receivables, whether pursuant to the related Contracts or otherwise;
(ix) all rights to payment under all other contracts and agreements associated with the Receivables;
(x) all security interests, Liens, guaranties and other encumbrances in favor of or assigned or transferred to the Borrower in and to the Receivables and Financed Vehicles;
(xi) all deposit therein accounts, monies, deposits, funds, accounts and instruments relating to the foregoing (subject to the Blocked Account Control Agreement and the Control Agreement);
(xii) the Purchase Agreement (including each Purchase Agreement Supplement) and remedies thereunder and the assignment to the Administrative Agent of all UCC financing statements filed by the Borrower against Lendbuzz Floorplan under or credited theretoin connection with the Purchase Agreement; and
(vxiii) any all other personal and all proceeds of any fixture property or assets of the foregoing Collateral Borrower of every kind and nature including, without limitation, all goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts, chattel paper (whether tangible or electronic), deposit accounts, securities accounts, securities entitlements, letter-of-credit rights, commercial tort claims, securities and all other investment property, supporting obligations, money, any other contract rights or rights to the payment of money, insurance claims and proceeds, and all general intangibles (including all payment intangibles) (each as defined in the UCC); and
(xiv) all income and proceeds of the records foregoing.
(b) The grant under this Section does not constitute and is not intended to result in a creation or an assumption by the Administrative Agent or any other Secured Party of any obligation of the Guarantor concerning Borrower or any other Person in connection with any or all of the foregoing Collateral; excluding (A) Collateral or under any funds properly withdrawn from a Collateral Account (agreement or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)instrument relating thereto. Notwithstanding the foregoing or anything Anything herein to the contrary in this Credit Agreement or any other Loan Document notwithstanding, (i) the term “Collateral” Borrower shall not include remain liable under the Unfunded Capital Commitments of the SOX Insiders, including but not limited Contracts to the right extent set forth therein to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests perform all of its duties and obligations thereunder to the SOX Insiders, same extent as if any, unless so elected by the Guarantor in its discretionthis Agreement had not been executed, (ii) the term “Collateral” exercise by the Administrative Agent of any of its rights in the Collateral shall not include release the Borrower from any Portfolio Investment, any Portfolio Assets of its duties or any Excluded Proceeds, obligations under the Collateral and (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) none of the Administrative Agent or any other Secured Party shall have any obligations or liability under the Collateral by reason of this Agreement, nor shall any of the Administrative Agent or any other Secured Party be obligated to perform any of the obligations or duties of the Borrower thereunder or to take any action to collect or enforce any claim for payment assigned hereunder. Each of Lendbuzz, Lendbuzz Floorplan, and the Secured Parties Borrower represents and warrants as to itself that each remittance of Collections by ▇▇▇▇▇▇▇▇, Lendbuzz Floorplan, or the Borrower to the Administrative Agent or any Lender hereunder will have been (A) in payment of a debt incurred by the Borrower in the ordinary course of business or financial affairs of the Lenders and the Borrower and (B) made in the ordinary course of business or financial affairs of the Lenders and the Borrower.
(c) Notwithstanding the foregoing grant of security interest, no account, instrument, chattel paper or other obligation or property of any kind due from, owned by or belonging to a Sanctioned Person shall not have any Lien on any property that is not “be Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Loan Agreement (Lendbuzz Inc.), Loan Agreement (Lendbuzz Inc.)
Collateral. Subject (a) Pledgor hereby assigns and pledges to Secured Party for its benefit and the benefit of all other Lenders (as referred to in the Loan Agreement), if any, a security interest in and to all of Pledgor’s right, title and interest in and to the terms following (the “Collateral”): (i) the shares of all capital stock, limited liability interests and other equivalent equity interests of the applicable Collateral Documentssubsidiaries of Pledgor identified on Exhibit A (the “ACT Entities”), which shares and interests are also identified on Exhibit A (the “Shares”); (ii) all cash dividends, stock dividends, interests, profits, redemptions, warrants, subscription rights, stock, options, substitutions, exchanges and other distributions now or hereafter distributed by the ACT Entities in respect of or otherwise in connection with the Shares or that may hereafter be delivered to secure the possession of Pledgor or Secured Party in respect of or otherwise in connection with the Shares; (iii) Pledgor’s records with respect to the foregoing; and (iv) the proceeds of all of the foregoing.
(b) This Agreement secures the payment and performance of all obligations of Pledgor to the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements Secured Party now or hereafter existing under this Agreement and the other related documentsTransaction Documents, whether for principal, interest, costs, expenses, indemnities or otherwise (all of such obligations being the Guarantor shall grant“Secured Obligations”). Without limiting the generality of the foregoing, and shall pledge and/or assign by way this Agreement secures the payment of security, to the Administrative Agent, for the benefit of each all amounts that constitute part of the Secured PartiesObligations and would be owed by Pledgor under any Transaction Document but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving Pledgor.
(c) Pledgor shall deliver to Secured Party or an authorized agent of Secured Party as applicabledirected by Secured Party (“Secured Party’s Agent”), a first priorityall certificates representing the Shares together with stock powers endorsed in blank, and other instruments, documents and agreements as Secured Party may reasonably deem necessary to perfect any security interest and ▇▇▇▇ in and on its interests in the following, whether now owned granted or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited required to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations be granted under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit this Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantorpromptly after Pledgor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinreceipt thereof.
Appears in 2 contracts
Sources: Pledge Agreement (Act Teleconferencing Inc), Pledge Agreement (Act Teleconferencing Inc)
Collateral. Subject (a) Unless an Event of Default shall have occurred and be continuing and the Administrative Agent shall have given notice to the terms Grantor of the applicable Collateral Documents, Administrative Agent's intent to secure the payment and performance of the Obligations hereunder, exercise its corresponding rights pursuant to a Collateral Account Pledge, a Security AgreementSection 5.1(b), the related financing statements Grantor shall be permitted to receive and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of securityuse all Proceeds, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests extent permitted in the followingCredit Agreement, whether now owned and to exercise all voting and corporate or hereafter acquired or arising:other organizational rights with respect to the Collateral.
(b) If an Event of Default shall occur and be continuing and the Administrative Agent shall have given notice to the Grantor of its intent to exercise such rights, (i) the Administrative Agent shall have the right to receive any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited Proceeds and make application thereof to the right to draw down Investor Capital Contributions on Credit Agreement Obligations in such Unfunded Capital Commitments from such Investors order as the Administrative Agent may determine, and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments any or all of the Investors constituting Collateral shall be registered in clause (i) abovethe name of the Administrative Agent or its nominee, and the Administrative Agent or its nominee may thereafter exercise (x) all voting, corporate and other rights pertaining to such Collateral at any meeting of shareholders of the Constituent Documents, Issuer or otherwise and (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z)subject to Section 5.6, any and all representationsrights of conversion, warranties, covenants exchange and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder subscription and any and all rights to compel performance and enforce the provisions thereof against such Investors other rights, privileges or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect options pertaining to such Collateral;
Collateral as if it were the absolute owner thereof (iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, the right to exchange at its discretion any and all of the records Collateral upon the merger, consolidation, reorganization, recapitalization or other fundamental change in the corporate or other organizational structure of the Guarantor concerning Issuer, or upon the exercise by the Grantor or the Administrative Agent of any right, privilege or option pertaining to such Collateral, and in connection therewith, the right to deposit and deliver any and all of the foregoing Collateral; excluding (A) Collateral with any funds properly withdrawn from a Collateral Account (committee, depositary, transfer agent, registrar or that could be withdrawn pursuant other designated agency upon such terms and conditions as the Administrative Agent may determine), all without liability except to account for property actually received by it, but the Administrative Agent shall have no duty to the Credit Agreement if deposited or credited Grantor to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to exercise any such account)right, privilege or option and shall not be responsible for any failure to make payments do so or distributions delay in so doing.
(c) The Grantor hereby authorizes and instructs the Issuer to Investors (i) comply with any instruction received by it from the Administrative Agent in writing that (x) states that an Event of Default has occurred and is continuing and (y) is otherwise in accordance with the terms hereof or for of this Agreement, without any other purpose permitted under or further instructions from the Guarantor’s Governing Documents and this Credit AgreementGrantor, and (Bii) the proceeds following receipt of such withdrawn funds (the items in (A) and (B)instruction, collectively “Excluded Proceeds”). Notwithstanding the foregoing pay any dividends or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection payments with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition respect to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject directly to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinAgent.
Appears in 2 contracts
Sources: Pledge Agreement (Centerpoint Energy Inc), Pledge Agreement (Centerpoint Energy Inc)
Collateral. Subject to the terms of the applicable Collateral DocumentsThe Obligations, to secure the payment including, without limitation, Rate Management Obligations and performance of the Obligations hereunderBanking Services Obligations, pursuant to a Collateral Account Pledgeshall be secured by (a) valid, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantperfected, and shall pledge and/or assign by way of securityenforceable Liens on all right, to the Administrative Agenttitle, for the benefit and interest of each of the Secured PartiesCredit Parties and each Subsidiary (other than Addus FEA) in all capital stock and other Equity Interests held by such Person in each of its Subsidiaries, as applicablewhether now owned or hereafter formed or acquired, a first priorityand all Proceeds thereof, security and (b) valid, perfected, and enforceable Liens on all right, title, and interest of each of the Credit Parties and ▇▇▇▇ each Subsidiary (other than Addus FEA) in all personal property, fixtures, and on its interests in the followingreal estate, whether now owned or hereafter acquired or arising:
, and all Proceeds thereof. Furthermore, (i) any and all Unfunded Capital Commitments Holdings will cause 100% of the Investorsissued and outstanding Equity Interests of each direct and indirect Subsidiary of Holdings, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, Addus FEA, to be subject at all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited times to a Collateral Account) to the extent usedfirst priority, perfected Lien and pledge in favor of Agent pursuant to the terms and conditions of this Agreement, and the applicable Collateral Documents or other security documents as Agent shall reasonably request. Notwithstanding the foregoing, the Lien of Agent shall not extend to and Collateral (or any asset or property comprising the Collateral) shall not include the following Property (all of the Guarantor’s Governing Documents, to purchase Portfolio Investments following being the “Excluded Assets”): (i) other than Permitted Investments deposited Accounts, any lease, license, permit or agreement to which any Credit Party is a party to the extent, but only to the extent, that such a grant would, under the terms of such lease, license, permit or agreement, result in a breach of the terms of, invalidate, or credited constitute a default under, such lease, license, permit or agreement or to the extent any requirement of law prohibits the grant of a Lien thereon; (ii) any Property that is the subject of a Lien securing any purchase money Indebtedness or Capital Lease permitted under this Agreement pursuant to an agreement the terms of which prohibit such Credit Party from granting any other Liens on such Property (with respect to clauses (i) and (ii), other than to the extent that any such term or prohibition would be rendered ineffective pursuant to the UCC or other applicable law); provided, that with respect to any such account)limitation described in the foregoing clauses (i) or (ii) (A) upon the request of the Agent, such Credit Party shall in good faith use commercially reasonable efforts to obtain any requisite consent for the creation of such Lien in favor of the Agent on such Property, (B) immediately upon the ineffectiveness, lapse or termination of any such restriction, the Collateral shall include, and such Credit Party shall be deemed to have granted a Lien on such Property under the applicable Collateral Documents as if such restriction had never been in effect; and (C) notwithstanding any such restriction, the Collateral shall, to make payments the extent such restriction does not by its terms apply thereto and such rights and Proceeds do not otherwise constitute Excluded Assets, include all rights incident or distributions appurtenant to Investors any such Property, and the right to receive all Proceeds derived from, or in accordance connection with the terms hereof sale, assignment or transfer of, such Property; (iii) more than 65% of the total of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by any Credit Party or any Domestic Subsidiary or any assets of any Foreign Subsidiary of the Credit Parties if in any such case Agent’s Lien on such Property would create a significant risk of a material adverse tax consequence to the Credit Parties; (iv) any “intent to use” applications for any other purpose permitted under Trademarks for which a statement of use has not been filed and accepted with the GuarantorUnited States Patent and Trademark Office; or (v) those assets as to which Agent determines in its Permitted Discretion the cost of obtaining a Lien therein in favor of Agent or the perfection thereof are excessive in relation to the benefit to the Lenders afforded by such Lien. Furthermore, the Lien of Agent need not be perfected in the following Property: (a) in each case with Agent’s Governing Documents prior written consent, (i) deposit accounts for ▇▇▇▇▇ cash supporting local operations so long as the amounts on deposit in such deposit accounts do not exceed $10,000 in the aggregate for all such accounts, (ii) deposit account number xxxx7086 with Citibank so long as such deposit account (x) is used solely to disburse payment of workers compensation claims related to a Credit Party that have been funded by Agent and this Credit Agreement, (y) has a balance of no more than the sum of (A) 100% of the total workers compensation claims amount being paid and (B) $50,000 (representing the proceeds minimum balance required amount) (or such greater minimum balance required amount agreed to in writing by Agent in its sole discretion) and (iii) payroll accounts so long as such payroll accounts (x) are used solely to disburse payroll for Credit Party employees and (y) have a balance of such withdrawn funds (the items in no more than either (A) 110% of the total payroll amount being paid for such week prior to the disbursement of such weekly payroll or (B) $30,000 for each such account after the disbursement of such weekly payroll (collectively, the “Excluded Accounts”); and (B)b) until an Event of Default has occurred and is continuing and thereafter until otherwise required by the Agent or the Required Lenders, collectively on vehicles which are subject to a certificate of title law (collectively, the “Excluded ProceedsVehicles”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Addus HomeCare Corp), Credit and Guaranty Agreement (Addus HomeCare Corp)
Collateral. Subject The Borrower will (a) warrant and defend the right, title and interest of the Lender and the Security Agent in and to the terms Collateral against the claims and demands of the applicable Collateral Documentsall persons whomsoever; (b) service, or cause to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitationbe serviced, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors Mortgage Loans in accordance with the terms hereof requirements of the issuers of Master Commitments and Purchase Commitments covering the same and all applicable FHA and VA requirements (including without limitation taking all actions necessary to enforce the obligations of the obligors under such Mortgage Loans) and service, or for any other purpose permitted under cause to be serviced, all Mortgage Loans backing Mortgage-backed Securities in accordance with applicable governmental requirements and the Guarantor’s Governing Documents requirements of issuers of Purchase Commitments covering the same; (c) hold all escrow funds collected in respect of Mortgage Loans and this Credit Agreementmortgage loans backing Mortgage-backed Securities in trust, without commingling the same with noncustodial funds, and apply the same for the purposes for which such funds were collected; (Bd) comply in all respects with the proceeds terms and conditions of such withdrawn funds all Master Commitments and Purchase Commitments, and all extensions, renewals and modifications or substitutions thereof or thereto, and deliver or cause to be delivered to the applicable Investor the Mortgage Loans and Mortgagebacked Securities to be sold under each Purchase Commitment not later than three (3) Business Days prior to the items in (A) expiration thereof; and (B)e) maintain, collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything and, upon request, shall make available to the contrary Lender, the Agent or the Security Agent the originals, or copies in this Credit Agreement or any other Loan Document (i) case where the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited original has been delivered to the right Security Agent or to draw down Investor Capital Contributions on such Unfunded Capital an Investor, of its Mortgage Notes, Mortgages, Purchase Commitments, or any Master Commitments, Hedging Contracts and all related Mortgage Loan documents and instruments, and all files, surveys, certificates, correspondence, appraisals, computer programs, tapes, discs, cards, accounting records and other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition information and data relating to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Warehouse Credit Agreement (Mortgage Com Inc), Warehouse Credit Agreement (Mortgage Com Inc)
Collateral. Subject As collateral security for the payment in full when due (whether at stated maturity, by acceleration or otherwise) of its Secured Obligations, each Obligor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, Agent for the benefit of each the Secured Parties as hereinafter provided a security interest in all of such Obligor’s right, title and interest in, to and under all of the Secured Partiesfollowing property and assets, as applicablein each case whether tangible or intangible, a first prioritywherever located, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned by such Obligor or hereafter acquired and whether now existing or arising:hereafter coming into existence (all of the property described in this Section 4 being collectively referred to herein as “Collateral”):
(ia) any all Accounts, all Chattel Paper, all Deposit Accounts, all Documents, all General Intangibles (including all Intellectual Property), all Instruments (including all Promissory Notes), all Portfolio Investments, all Pledged Debt, all Pledged Equity Interests, all Investment Property not covered by the foregoing (including all Securities, all Securities Accounts and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls Security Entitlements with respect theretothereto and Financial Assets carried therein, and all Commodity Accounts and Commodity Contracts), all letters of credit and Letter-of-Credit Rights, all Money and all Goods (including Inventory and Equipment), and all Commercial Tort Claims;
(iib) to the extent relating related to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveany Collateral, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoSupporting Obligations;
(iiic) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under related to any of the foregoing Collateral and any and Collateral, all security books, correspondence, credit files, records, invoices and other property with respect papers (including all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Obligor or any computer bureau or service company from time to time acting for such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretoObligor); and
(vd) any and all proceeds Proceeds of any of the foregoing Collateral includingCollateral. IT BEING UNDERSTOOD, without limitationHOWEVER, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding that (A) in no event shall the security interest granted under this Section 4 attach to (1) any funds properly withdrawn from contract, property rights, obligation, instrument or agreement to which an Obligor is a Collateral Account party (or that could be withdrawn pursuant to any of its rights or interests thereunder) if the Credit Agreement if deposited grant of such security interest would constitute or credited to result in either (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Obligor therein or (ii) a Collateral Account) to the extent used, breach or termination pursuant to the terms of the Guarantor’s Governing Documentsof, to purchase Portfolio Investments or a default under, any such contract, property rights, obligation, instrument or agreement (other than Permitted Investments deposited in or credited to the extent that any such accountterms would be rendered ineffective by Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code as in effect in the relevant jurisdiction), to make payments or distributions to Investors in accordance with the terms hereof or for (2) any other purpose permitted under the Guarantor’s Governing Documents and this Credit AgreementExcluded Assets, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or notwithstanding anything to the contrary provided in this Credit Agreement or any other Loan Document (i) Agreement, the term “Collateral” shall not include include, and the Unfunded Capital Commitments of the SOX InsidersObligors shall not be deemed to have granted a security interest in, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, Excluded Assets and (iiB) the term “Collateral” shall not include any Portfolio InvestmentObligors, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition by notice to the Collateral Accounts Agent, exclude from the grant of a security interest provided above in this Section 4, any Special Equity Interest designated by the Borrower in reasonable detail to the Collateral Agent in such notice (it being understood that will not be considered “Collateral” and the Borrower may at any later time rescind any such other accounts shall not be subject designation by similar notice to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinCollateral Agent).
Appears in 2 contracts
Sources: Guarantee, Pledge and Security Agreement (Capitala Finance Corp.), Guarantee, Pledge and Security Agreement (Capitala Finance Corp.)
Collateral. Subject As collateral security for the payment in full when due (whether at stated maturity, by acceleration or otherwise) of its Secured Obligations, each Obligor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, Agent for the benefit of each the Secured Parties as hereinafter provided a security interest in all of such Obligor’s right, title and interest in, to and under all of the Secured Partiesfollowing property and assets, as applicablein each case whether tangible or intangible, a first prioritywherever located, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned by such Obligor or hereafter acquired and whether now existing or arising:hereafter coming into existence (all of the property described in this Section 4 being collectively referred to herein as “Collateral”):
(ia) any all Accounts, all Chattel Paper, all Deposit Accounts, all Documents, all General Intangibles (including all Intellectual Property), all Instruments (including all Promissory Notes), all Portfolio Investments, all Pledged Debt, all Pledged Equity Interests, all Investment Property not covered by the foregoing (including all Securities, all Securities Accounts and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls Security Entitlements with respect theretothereto and Financial Assets carried therein, and all Commodity Accounts and Commodity Contracts), all letters of credit and Letter-of-Credit Rights, all Money and all Goods (including Inventory and Equipment), and all Commercial Tort Claims;
(iib) to the extent relating related to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveany Collateral, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoSupporting Obligations;
(iiic) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under related to any of the foregoing Collateral and any and Collateral, all security books, correspondence, credit files, records, invoices and other property with respect papers (including all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Obligor or any computer bureau or service company from time to time acting for such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretoObligor); and
(vd) any and all proceeds Proceeds of any of the foregoing Collateral includingCollateral. IT BEING UNDERSTOOD, without limitationHOWEVER, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding that (A) in no event shall the security interest granted under this Section 4 attach to (A1) any funds properly withdrawn from contract, property rights, obligation, instrument or agreement to which an Obligor is a Collateral Account party (or that could be withdrawn pursuant to any of its rights or interests thereunder) if the Credit Agreement if deposited grant of such security interest would constitute or credited to result in either (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Obligor therein or (ii) in a Collateral Account) to the extent used, breach or termination pursuant to the terms of the Guarantor’s Governing Documentsof, to purchase Portfolio Investments or a default under, any such contract, property rights, obligation, instrument or agreement (other than Permitted Investments deposited in or credited to the extent that any such account)terms would be rendered ineffective by Section 9-406, to make payments 9-407, 9-408 or distributions to Investors 9-409 of the Uniform Commercial Code as in accordance with effect in the terms hereof relevant jurisdiction) or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) any Excluded Assets, and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or notwithstanding anything to the contrary provided in this Credit Agreement or any other Loan Document (i) Agreement, the term “Collateral” shall not include include, and the Unfunded Capital Commitments of the SOX InsidersObligors shall not be deemed to have granted a security interest in, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, Excluded Assets. and (iiB) the term “Collateral” shall not include any Portfolio InvestmentObligors, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition by notice to the Collateral Accounts Agent, exclude from the grant of a security interest provided above in this Section 4, any Special Equity Interest designated by the Borrower in reasonable detail to the Collateral Agent in such notice (it being understood that will not be considered “Collateral” and the Borrower may at any later time rescind any such other accounts shall not be subject designation by similar notice to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinCollateral Agent).
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Agreement (Medley Capital Corp), Senior Secured Term Loan Credit Agreement (Medley Capital Corp)
Collateral. Subject to the terms of the applicable Collateral Documents, to (a) To secure the full and complete payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements and the other related documents, the Guarantor shall grantBorrower shall, and shall pledge and/or assign by way cause each of securityits Subsidiaries, other than the Foreign Subsidiaries, to, on or before the Closing Date, grant to the Administrative Agent, Agent for the benefit of each the Administrative Agent and the Lenders a perfected, first priority Lien on all of the Secured Partiesits right, as applicable, a first priority, security title and interest and ▇▇▇▇ in and on its interests in to the followingfollowing Property, whether now owned or hereafter acquired or arisingacquired, and the proceeds and products thereof, pursuant to the Security Documents:
(i) any and all Unfunded Capital Commitments capital stock of each of the Investors, whether now Subsidiaries of the Borrower owned as of the Closing Date or hereafter committed, including but not limited to thereafter acquired by the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoBorrower or any Subsidiary of the Borrower;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements each Lockbox and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder Agency Account and any and all rights to compel performance and enforce the provisions thereof against such Investors cash or guarantors and otherwise pursue remedies against such Investors other moneys credited thereto or guarantors with respect theretoretained therein;
(iii) all capital stock of ICII or any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any Person owned as of the foregoing Collateral and Closing Date or thereafter acquired by the Borrower or any and all security and other property with respect to such Collateral;Subsidiary of the Borrower; and
(iv) each all LHO Loans outstanding as of the Closing Date or thereafter at any time existing, together with all LHO Loan Collateral Account, including but not limited therefor. The Borrower covenants that none of the capital stock to be pledged in accordance with this Section 7.1 shall be subject to any transfer restrictions, ----------- shareholders' agreement or other restriction except for such restrictions under Applicable Laws and all funds such restrictions, if any, as may be reasonably acceptable to the Administrative Agent. In connection with and financial assets on deposit therein or credited thereto; and
in addition to the foregoing, the Borrower and its Subsidiaries shall execute and/or deliver such Security Documents and further agreements, documents and instruments (v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of LHO Loan notes, stock certificates, stock powers, endorsements, collateral assignments, and financing statements) as the Guarantor concerning any of Administrative Agent may reasonably request in order for it to obtain and maintain the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could perfected, first priority Liens to be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors granted in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)Section 7.1. Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.-----------
Appears in 2 contracts
Sources: Credit Agreement (Imperial Financial Group Inc), Credit Agreement (Imperial Financial Group Inc)
Collateral. Subject (a) The parties hereto intend that this Agreement constitute a security agreement and the transactions effected hereby constitute secured loans by the Lenders to the terms of Borrower under Applicable Law. As collateral security for the applicable Collateral Documentsprompt, to secure the complete and indefeasible payment and performance in full when due, whether by lapse of time, acceleration or otherwise, of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, Borrower hereby grants to the Administrative Agent, as agent for the benefit of each of the Secured Parties, as applicable, a first priority, lien on and security interest in all of the Borrower’s right, title and ▇▇▇▇ in interest in, to and on its interests in under the following, whether now existing or owned or hereafter arising or acquired or arising:by the Borrower (collectively, the “Collateral”):
(i) any the Receivables and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, related Contracts (including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors service the Receivables in connection therewith) and to issue Investor Capital Calls any accounts or obligations evidenced thereby, any guarantee thereof, all Collections and all monies due (including any payments made under any guarantee or similar credit enhancement with respect theretoto any such Receivables) or to become due or received by any Person in payment of any of the foregoing on or after the related Cutoff Date;
(ii) the Financed Vehicles related to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral such Receivables (including Financed Vehicles that have been repossessed) or in clause (i) aboveany document or writing evidencing any security interest in any Financed Vehicle and each security interest in each Financed Vehicle securing each such Receivable, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, including all proceeds from any sale or other disposition of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoFinanced Vehicles;
(iii) any and all agreements, instruments and other documents of every kind or description the Account Collateral (subject to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property Blocked Account Control Agreement, with respect to such Collateralthe Remittance Account, and subject to the Control Agreement, with respect to the Collection Account and the Hedge Reserve Account);
(iv) each Collateral Accountall Hedge Collateral;
(v) all Receivable Files, the Schedule of Receivables, and all documents, agreements and instruments included in the Receivable Files, including but not limited rights of recourse of the Borrower against Lendbuzz, Lendbuzz Funding, and/or any Dealer with respect to the Receivables;
(vi) all Records, documents and writings evidencing or related to the Receivables or the Contracts;
(vii) all rights to payment under all Insurance Policies with respect to a Financed Vehicle, including any monies collected from whatever source in connection with any default of an Obligor with respect to a Financed Vehicle and any proceeds from claims or refunds of premiums on any Insurance Policy;
(viii) all funds guaranties, indemnities, warranties, insurance (and financial assets on proceeds and premium refunds thereof) and other agreements or arrangements of whatever character from time to time supporting or securing payment of the Receivables, whether pursuant to the related Contracts or otherwise;
(ix) all rights to payment under all service contracts and other contracts and agreements associated with the Receivables;
(x) all security interests, Liens, guaranties and other encumbrances in favor of or assigned or transferred to the Borrower in and to the Receivables and Financed Vehicles;
(xi) all deposit therein accounts, monies, deposits, funds, accounts and instruments relating to the foregoing (subject to the Blocked Account Control Agreement and the Control Agreement);
(xii) the Purchase Agreement (including each Purchase Agreement Supplement) and remedies thereunder and the assignment to the Administrative Agent of all UCC financing statements filed by the Borrower against Lendbuzz Funding under or credited theretoin connection with the Purchase Agreement; and
(vxiii) any all income and all proceeds of the foregoing.
(b) The grant under this Section does not constitute and is not intended to result in a creation or an assumption by the Administrative Agent, any Agent, or any other Secured Party of any obligation of the foregoing Collateral including, without limitation, Borrower or any other Person in connection with any or all of the records of the Guarantor concerning Collateral or under any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (agreement or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)instrument relating thereto. Notwithstanding the foregoing or anything Anything herein to the contrary in this Credit Agreement or any other Loan Document notwithstanding, (i) the term “Collateral” Borrower shall not include remain liable under the Unfunded Capital Commitments of the SOX Insiders, including but not limited Contracts to the right extent set forth therein to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests perform all of its duties and obligations thereunder to the SOX Insiders, same extent as if any, unless so elected by the Guarantor in its discretionthis Agreement had not been executed, (ii) the term “Collateral” exercise by the Administrative Agent of any of its rights in the Collateral shall not include release the Borrower from any Portfolio Investment, any Portfolio Assets of its duties or any Excluded Proceeds, obligations under the Collateral and (iii) none of the term “Collateral” Administrative Agent, any Agent, or any other Secured Party shall not include have any collateral posted obligations or received in connection with the Swap Agreements, (iv) liability under the Collateral may by reason of this Agreement, nor shall any of the Administrative Agent, any Agent, or any other Secured Party be subject obligated to Permitted Liensperform any of the obligations or duties of the Borrower thereunder or to take any action to collect or enforce any claim for payment assigned hereunder. Each of Lendbuzz, (v) a Lendbuzz Funding, and the Borrower represents and warrants as to itself that each remittance of Collections by ▇▇▇▇▇▇▇▇, Lendbuzz Funding, or the Guarantor may maintain other bank accounts or securities accounts in addition Borrower to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent or any Lender hereunder will have been (A) in payment of a debt incurred by the Borrower in the ordinary course of business or financial affairs of the Lenders and the Secured Parties Borrower and (B) made in the ordinary course of business or financial affairs of the Lenders and the Borrower.
(c) Notwithstanding the foregoing grant of security interest, no account, instrument, chattel paper or other obligation or property of any kind due from, owned by or belonging to a Sanctioned Person shall not have any Lien on any property that is not “be Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Loan Agreement (Lendbuzz Inc.), Loan Agreement (Lendbuzz Inc.)
Collateral. Subject to the terms All of the applicable Collateral Documentsyour right, title and interest in, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of under each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the followingfollowing items of property, whether now owned or hereafter acquired acquired, now existing or arisinghereafter created and wherever located, are hereinafter referred to as the "COLLATERAL":
(i) any a. all Assets;
b. all Collateral Documents, including without limitation all promissory notes relating to or evidencing the Assets, and all Unfunded Capital Commitments of the InvestorsServicing Records, whether now servicing agreements and any other collateral pledged or hereafter committedotherwise relating to such Collateral, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors together with all files, documents, instruments, surveys, certificates, correspondence, appraisals, computer programs, computer storage media, accounting records and to issue Investor Capital Calls with respect other books and records relating thereto;
(ii) c. all securities, monies or property representing dividends or interest on any of the foregoing, or representing a distribution in respect of the foregoing, or resulting from a split-up, revision, reclassification or other like change of the foregoing or otherwise received in exchange therefor, and any subscription warrants, rights or options issued to the extent holders of, or otherwise in respect of, the foregoing.
d. all Pooling and Servicing Agreements;
e. all Collection Accounts and amounts on deposit therein;
f. all Cash Collateral Accounts and amounts on deposit therein;
g. all guaranties and insurance (issued by governmental agencies or otherwise) and any insurance certificate or other document evidencing such guaranties or insurance relating to the Unfunded Capital Commitments any item of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties claims and payments thereunder;
h. all other insurance policies and insurance proceeds relating to any item of such Investors’ obligations under the Constituent Documents and Subscription Agreements including Collateral;
i. all Interest Rate Protection Agreements;
j. all Additional Collateral provided to us as described herein;
k. all of your rights, but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting your obligations under any purchase agreements and servicing agreements covering or relating to any item of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of without limitation the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit FIRSTPLUS Purchase Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.FIRSTPLUS Servicing Agreement to which you are a party;
Appears in 2 contracts
Sources: Loan and Security Agreement (Firstplus Financial Group Inc), Loan and Security Agreement (Firstplus Financial Group Inc)
Collateral. Subject to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a the related Collateral Account PledgePledges, a Security AgreementAgreements, the related financing statements and the other related documents, the Guarantor (A) Primary Borrower shall grant, by way of pledge and shall pledge and/or assign assignment by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, and (B) each Pledgor and Pledgor General Partner, as applicable, shall grant, by way of pledge and assignment by way of security, to the Primary Borrower, in each case, a first priority, security interest and ▇▇▇▇ Lien in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto;
(v) all of the Primary Borrower’s rights, titles, interests, remedies and privileges related to, appurtenant to or arising out of the Pledgor Security Agreement, the Pledgor Collateral Account Pledge and the Pledgor Acknowledgment and Confirmation, each executed by a Pledgor for the benefit of, and pledged to, the Primary Borrower; and
(vvi) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor Primary Borrower, a Pledgor or General Partners (as the case may be) concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documentsapplicable Partnership Agreement, to purchase Portfolio Fund Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents Partnership Agreement and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX InsidersEmployee Investors, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX InsidersEmployee Investors, if any, unless so elected by the Guarantor Primary Borrower or Pledgor, as applicable, in its discretion, (ii) the term “Collateral” shall not include any Portfolio Fund Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor Pledgor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties Parties, or the Primary Borrower, as applicable, shall not have any Lien on any property that is not “Collateral”, ” except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Goldman Sachs Middle Market Lending Corp. II), Revolving Credit Agreement (Goldman Sachs Middle Market Lending Corp. II)
Collateral. Subject As collateral security for the payment in full when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations owing by such Obligor, each Obligor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, Agent for the benefit of each the Secured Creditors and, with respect to Shared Collateral, to the Shared Lien Collateral Agent for the benefit of the Secured Parties, Creditors as applicable, hereinafter provided a first priority, security interest in all of such Obligor's right, title and ▇▇▇▇ interest in, to and under the following property, in each case whether tangible or intangible, wherever located, and on its interests in the following, whether now owned by such Obligor or hereafter acquired and whether now existing or arisinghereafter coming into existence (all of the property described in this Section 3 being collectively referred to herein as "Collateral"):
(a) all Accounts:
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents;
(e) all Equipment;
(f) all Fixtures;
(g) all General Intangibles;
(h) all Goods not covered by the other clauses of this Section 3;
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoPledged Shares;
(iij) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveall Instruments, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and including all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoPromissory Notes;
(iiik) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such CollateralIntellectual Property;
(ivl) each Collateral Accountall Inventory;
(m) all Investment Property not covered by other clauses of this Section 3, including but not limited to any all Securities, all Securities Accounts and all funds Security Entitlements with respect thereto and financial assets on deposit therein or credited theretoFinancial Assets carried therein, and all Commodity Accounts and Commodity Contracts;
(n) all Letter-of-Credit Rights;
(o) all commercial tort claims, as defined in Section 9-102(a)(13) of the NYUCC, arising out of the events described in Annex 8;
(p) all other tangible and intangible personal property whatsoever of such Obligor; and
(vq) all Proceeds of any of the Collateral, all Accessions to and substitutions and replacements for, any of the Collateral, all Supporting Obligations with respect to any of the Collateral and all proceeds offspring, rents, profits and products of any of the Collateral, and, to the extent related to any Collateral, all books, correspondence, credit files, records, invoices and other papers (including all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Obligor or any computer bureau or service company from time to time acting for such Obligor), IT BEING UNDERSTOOD, HOWEVER, that (A) in the case of any of the foregoing Collateral includingthat consists of general or limited partnership interests in a general or limited partnership or any Shares in a Joint Venture, without limitationthe security interest hereunder shall be deemed to be created only to the maximum extent permitted under the applicable organizational instrument or joint venture agreement pursuant to which such entity is formed or governed, all (B) in no event shall the security interest granted under this Section 3 attach to (1) any lease, license, contract, property rights or agreement to which such Obligor is a party (or to any of its rights or interests thereunder) if the grant of such security interest therein would constitute or result in either (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Obligor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement (other than to the extent that any such term would be rendered ineffective by Section 9-406, 9-407, 9-408 or 9-409 of the records of Uniform Commercial Code as in effect in the Guarantor concerning any of the foregoing Collateral; excluding relevant jurisdiction), (A2) any funds properly withdrawn from Equipment owned by any Obligor on the date hereof or hereafter acquired that is subject to a Collateral Account (or that could Lien securing Indebtedness permitted to be withdrawn incurred pursuant to Section 7.01(f) of the Credit Agreement if deposited the contract or credited to a Collateral Accountother agreement in which such Lien is granted (or the documentation providing for such Indebtedness) validly prohibits the creation of any other Lien on such Equipment and (3) any Fixtures located on premises leased by the Obligors to the extent usedthe pledge thereof or grant of a security interest therein (x) is prohibited by the lease governing such premises or (y) would result in the forfeiture of any Obligor's right, pursuant title or interest therein under applicable law, (C) the security interest created hereby in Shares constituting voting stock of any Issuer that is a Foreign Subsidiary shall be limited to the terms that portion of such voting stock that does not exceed 65% of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any aggregate issued and outstanding voting stock of such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, Issuer and (BD) for the proceeds avoidance of such withdrawn funds (doubt, the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding security interest created hereby is not a conditional or an absolute assignment of any of the foregoing or anything to the contrary in this Credit Agreement Trademark Collateral or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Second Lien Security Agreement (Krispy Kreme Doughnuts Inc), Security Agreement (Krispy Kreme Doughnuts Inc)
Collateral. Subject to (a) For the terms purposes of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security this Agreement, all assets (other than the related financing statements Equity Interests of and the in Countryplace Acceptance Corporation) of any Grantor (other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, than a first priority, security interest and ▇▇▇▇ in and on its interests in the followingLimited Pledgor), whether now presently existing or owned or hereafter acquired arising or arisingacquired, of any kind or nature and wherever located, in which a Grantor (other than a Limited Pledgor) now has or at any time in the future may acquire any right, title or interests, including all of the following property, is collectively referred to as the “All Assets Collateral”:
(i) all accounts, chattel paper (including electronic chattel paper), deposit accounts, documents (as defined in the UCC), equipment, general intangibles, instruments, inventory, investment property and any Support Obligations related thereto;
(ii) the commercial tort claims described on Schedule II and on any supplement thereto received by the Secured Party pursuant to Section 4.08;
(iii) all Unfunded Capital Commitments property of such Grantor held by the InvestorsSecured Party, whether now including all property of every description, in the custody of or hereafter committedin transit to the Secured Party for any purpose, including safekeeping, collection or pledge, for the account of such Grantor or as to which such Grantor may have any right or power, including but not limited to cash;
(iv) all other goods (including but not limited to fixtures) and personal property of such Grantor, whether tangible or intangible and wherever located;
(v) all books, records and other documentation pertaining to the right other property described in this Section 2.01; and
(vi) to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors the extent not otherwise included, all proceeds of the foregoing;
(b) For the purposes of this Agreement, all of the following property, whether presently existing or owned or hereafter arising or acquired and wherever located, by a Limited Pledgor, or in which a Limited Pledgor now has or at any time in the future may acquire any right, title or interests is collectively referred to issue Investor Capital Calls as the “Limited Collateral” and, together with respect theretothe All Assets Collateral, the “Collateral”:
(i) all Pledged Equity Interests in each Pledged Entity;
(ii) all rights, interests and claims with respect to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral Pledged Equity Interests in clause (i) aboveeach Pledged Entity, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) including under any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors Pledged Collateral Agreement with respect theretoto such Pledged Entity;
(iii) any and all agreementsbooks, instruments records and other documents of every kind or description documentation pertaining to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateraldescribed in this Section 2.01(b);
(iv) each Collateral Accountto the extent not otherwise included, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.foregoing;
Appears in 2 contracts
Sources: Security Agreement (Palm Harbor Homes Inc /Fl/), Security Agreement (Cavco Industries Inc)
Collateral. Subject to For the terms purposes of this Agreement, all of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether following property now owned or at any time hereafter acquired by a Grantor or arisingin which a Grantor now has or at any time in the future may acquire any right, title or interests is collectively referred to as the “Collateral”:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Intellectual Property, other than intent-to-use applications until such applications mature into registered trademarks;
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoInventory;
(iij) all Investment Property;
(k) all Letter-of-Credit Rights;
(l) all Vehicles;
(m) the Commercial Tort Claims described on Schedule 13 to the Perfection Certificate or of which the Collateral Agent is notified pursuant to Section 4.10;
(n) to the extent relating determined to be the Unfunded Capital Commitments property of any Grantor, the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any Escrow Account and all guaranties of such Investors’ obligations under interests in items in the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoEscrow Account;
(iiio) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such CollateralSupporting Obligations;
(ivp) each all books and records pertaining to the other property described in this Section 2.1;
(q) all property of any Grantor held by the Collateral AccountAgent (including in its capacity as Escrow Agent under the Escrow Agreement) or any other Secured Party, including but not limited all property of every description, in the possession or custody of or in transit to the Collateral Agent or such Secured Party for any purpose, including safekeeping, collection or pledge, for the account of such Grantor or as to which such Grantor may have any right or power;
(r) all other Goods and all funds personal property of such Grantor, whether tangible or intangible and financial assets on deposit therein or credited theretowherever located; and
(vs) any and to the extent not otherwise included, all proceeds Proceeds of any of the foregoing Collateral includingforegoing; provided, without limitationhowever, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term that “Collateral” shall not include any Portfolio InvestmentExcluded Property and (ii) that if and when any property shall cease to be Excluded Property, such property shall be deemed at all times from and after the date of the Original Security Agreement to constitute Collateral. In addition, notwithstanding any Portfolio Assets of the other provisions set forth in this Article II or anything else contained in this Agreement or any Excluded Proceedsother Loan Document, the amount of all Secured Obligations secured by the Limited Entities’ assets shall not at any time in the aggregate exceed the lesser of (i) $200,000,000 and (ii) 90% of the excess, as reflected on the Limited Entities’ most recent audited financial statements as of the date of determination of the Limited Entities’ liabilities hereunder, of the Limited Entities’ total assets (including any note receivable from an affiliate, but only to the extent that a demand on such note receivable has been made and has been satisfied since the date of the Limited Entities’ most recent audited financial statements) over the Limited Entities’ total liabilities. Notwithstanding anything herein or in any other Loan Document to the contrary, it is hereby acknowledged and agreed that (a) the perfection and priority of the security interests granted by the Limited Entities, (iiib) the term “Collateral” shall not include delivery of any collateral posted or received in connection with Collateral by the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition Limited Entities to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions Agent and (vic) if it would result in an impairment of surplus of the Administrative Agent Limited Entities to the extent that the surplus is less than the amount prescribed by the Vermont Commissioner pursuant to Section 6004(b) of Title 8 of the Vermont Statutes Annotated, the enforcement of rights and remedies of the Secured Parties shall not have any Lien on any property that is not “Collateral”are, except in connection with any Swap Agreementeach case, as provided thereinsubject to the prior consent of the Vermont Commissioner.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Wendy's/Arby's Group, Inc.), Pledge and Security Agreement (Wendy's/Arby's Group, Inc.)
Collateral. Subject Each Grantor hereby pledges, collaterally assigns and transfers to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantAgent, and shall pledge and/or assign by way of security, hereby grants to the Administrative Collateral Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in in, all of the following, whether now owned or at any time hereafter acquired by such Grantor or arisingin which such Grantor now has or at any time in the future may acquire any right, title or interest, wherever located (collectively, the “Collateral”), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of all the Secured Obligations:
(a) all Accounts and accounts receivable;
(b) all Chattel Paper;
(c) all Commercial Tort Claims, including without limitation those listed on Schedule 4 or described in any notice sent pursuant to Section 4.08;
(d) all Commodity Accounts, Deposit Accounts and Securities Accounts;
(e) all Contracts, including, but not limited to each swap contract to which such Grantor is now or may hereafter become a party, in each case as such agreements may be amended, amended and restated, supplemented or otherwise modified from time to time (collectively, the “Assigned Agreements”) and Contract Rights;
(f) all Documents;
(g) all Equipment;
(h) all Financial Assets;
(i) any all Fixtures;
(j) all General Intangibles (including franchise rights);
(k) all Goods;
(l) all Instruments;
(m) all Intellectual Property, Copyright Licenses, Patent Licenses and Trademark Licenses;
(n) all Inventory;
(o) all Investment Property (including, for the avoidance of doubt, all Equity Interests, interest in the limited liability company, or membership interests of each Issuer owned by such Grantor, all of such Grantor’s right to participate in the management of the business and affairs of each such Issuer or otherwise control each such Issuer, and all Unfunded Capital Commitments of the Investorssuch Grantor’s rights as a shareholder or member of each such Issuer);
(p) all Letters of Credit, whether Letter-of-Credit Rights and Payment Intangibles;
(q) all money, cash and Cash Equivalents;
(r) all distributions, monies, fees, payments, compensations and proceeds now or hereafter committed, including but not limited becoming due and payable with respect to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors Pledged Stock and to issue Investor Capital Calls with respect theretothe Pledged Debt, whether payable as profits, distributions, asset distributions, repayment of loans or capital or otherwise;
(iis) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral all other property not otherwise described above (except for any property specifically excluded from any other clause in clause (i) abovethis section, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoproperty specifically excluded from any defined term used in any clause of this section);
(iiit) all insurance payments, proceeds, refunds, and premium rebates (including, without limitation, with respect to fire and credit insurance), whether or not any of such payments, proceeds, refunds, and all agreements, instruments and other documents premium rebates arise out of every kind or description to the extent evidencing or supporting obligations under any of the foregoing and whether or not the Collateral and any Agent is the lender loss payee or loss payee thereof, and all security other payments, proceeds, refunds and other property premium rebates with respect to such any indemnity, warranty or guaranty by reason of loss or damage to or otherwise with respect to the Collateral;
(ivu) each all books, records, and information pertaining to the Collateral Accountand/or to the operation of any Grantor’s business, including but not limited to any and all funds rights of access to such books, records, and financial assets on deposit therein or credited theretoinformation; and
(v) to the extent not otherwise included, all Proceeds, Supporting Obligations and products of, and all income, royalties and other payments now or hereafter due and payable with respect to, any and all proceeds of the foregoing and all collateral security, liens, guarantees, rights, remedies and privileges given by any Person with respect to any of the foregoing foregoing. The Collateral includingAgent is further authorized, without limitationand each Grantor hereby grants the Collateral Agent with all rights, all to file with the United States Patent and Trademark Office, the United States Copyright Office, and any applicable foreign intellectual property office (subject to the limitations set forth in Section 6.12 of the records Credit Agreement), a Copyright Security Agreement, Patent Security Agreement, and Trademark Security Agreement, substantially in the forms attached hereto as Exhibit A, Exhibit B, and Exhibit C, respectively, and such other documents as may reasonably be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the Guarantor concerning security interest granted by each Grantor in such Grantor’s Patents, Trademarks and Copyrights, and naming such Grantor or the Grantors as debtors and the Collateral Agent as secured party, and, where required, executed by such Grantor or Grantors. Notwithstanding any of the foregoing Collateralforegoing, no Lien or security interest is hereby granted on any Excluded Asset; excluding (A) provided, further, that if and when any funds properly withdrawn from property shall cease to be an Excluded Asset, a Collateral Account (or that could Lien on and security interest in such property shall be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms deemed granted therein. Each of the Guarantor’s Governing Documents, Grantors agree to purchase Portfolio Investments (other than Permitted Investments deposited cooperate in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or execution of applicable Security Agreements for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinceases to be an Excluded Asset.
Appears in 2 contracts
Sources: Credit Agreement (New Beginnings Acquisition Corp.), Reaffirmation Agreement and Omnibus Amendment Agreement (New Beginnings Acquisition Corp.)
Collateral. Subject to As collateral security for the terms prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the applicable Senior Secured Obligations, each Debtor hereby pledges to Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the ratable benefit of each of the Secured PartiesParties to the extent provided in the Intercreditor Agreement, as applicableand grants to Collateral Agent, for the ratable benefit of the Secured Parties to the extent provided in the Intercreditor Agreement, a first priority, security interest in, all of such Debtor’s right, title and ▇▇▇▇ in and on its interests interest in the followingfollowing property, whether now owned by such Debtor or hereafter acquired and whether now existing or arising:hereafter coming into existence (all being collectively referred to herein as “Collateral”):
(a) all Accessions;
(b) all Accounts;
(c) all As-Extracted Collateral;
(d) all Chattel Paper;
(e) all Commercial Tort Claims;
(f) all Commodity Accounts;
(g) all Commodity Contracts;
(h) all Deposit Accounts;
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoFinancial Assets;
(iij) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoGeneral Intangibles;
(iiik) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such CollateralGoods;
(ivl) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; andInstruments;
(m) all Inventory;
(n) all Investment Property;
(o) all Intellectual Property;
(p) all Equipment;
(q) all Contracts;
(r) all Documents;
(s) all Letter-of-Credit Rights;
(t) all Payment Intangibles;
(u) all Software;
(v) any and all proceeds of Supporting Obligations;
(w) all Pledged Stock;
(x) all Pledged Obligations;
(y) all Pledged Interests;
(z) all shares, securities, moneys or property representing a dividend on any of the foregoing Collateral Pledged Stock, or representing a distribution or return of capital upon or in respect of the Pledged Stock, or resulting from a split-up, revision, reclassification or other like change of the Pledged Stock or otherwise received in exchange therefor, and any subscription warrants, rights or options issued to the holders of, or otherwise in respect of, the Pledged Stock;
(aa) without affecting the obligations of such Debtor under any provision prohibiting such action hereunder or under the Financing Documents, in the event of any consolidation or merger in which an Issuer, LLC or Partnership is not the surviving entity, all shares of each class of the capital stock of the successor corporation or interests or certificates of the successor limited liability company or partnership owned by the Debtors (unless such successor is such Debtor itself) formed by or resulting from such consolidation or merger; all rights, claims and benefits of such Debtor against any Person arising out of, relating to or in connection with Inventory or Equipment purchased by such Debtor, including, without limitation, any such rights, claims or benefits against any Person storing or transporting such Inventory or Equipment; and all other tangible and intangible personal property and fixtures of the records such Debtor, including without limitation all Proceeds, products, offspring, accessions, rents, profits, income, benefits, substitutions and replacements of the Guarantor concerning and to any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to property of such Debtor described in the Credit Agreement if deposited or credited to a Collateral Account) preceding clauses of this Section 3.1, and, to the extent usedrelated to any property described in such clauses or such Proceeds, pursuant products and accessions, all books, correspondence, credit files, records, invoices and other papers, including without limitation all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Debtor or any computer bureau or service company from time to time acting for such Debtor. Furthermore, if the grant, pledge, collateral transfer or assignment of any rights of any Debtor under any contract included in the Collateral is expressly prohibited by such contract, then the security interest hereby granted nonetheless remains effective to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected extent allowed by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements UCC or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property applicable law but is otherwise limited by that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinprohibition.
Appears in 2 contracts
Sources: Security Agreement (Spartech Corp), Security Agreement (Spartech Corp)
Collateral. Subject to the terms of the applicable Collateral Documents, to To secure the full and complete payment and performance of the Obligations hereunderObligations, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantBorrower shall, and shall pledge and/or assign by way cause each of securityits Domestic Subsidiaries (other than Excluded Subsidiaries) to, execute and deliver or cause to be executed and delivered the Administrative documents described below covering the property and collateral described therein and in this Section 5.1 (which, together with any other property and collateral which may now or hereafter secure the Obligations or any part thereof, is sometimes herein called the “Collateral”):
(a) Borrower shall, and shall cause each of its Domestic Subsidiaries (other than Excluded Subsidiaries) to, grant to Collateral Agent, for the benefit of each of itself and the Secured Parties, as applicableLenders, a first priority, security interest in all of its accounts, accounts receivable, inventory, equipment, machinery, fixtures, chattel paper, documents, instruments, deposit accounts, investment property, letter of credit rights, intellectual property, general intangibles and ▇▇▇▇ in and on all its interests in the followingother personal property, whether now owned or hereafter acquired acquired, and all products and proceeds thereof, pursuant to the Security Agreement, which security interest shall be perfected to the extent required therein and shall be prior to all other Liens other than Permitted Liens.
(b) Each Credit Party shall grant to Collateral Agent, for the benefit of itself and the Lenders, a security interest in all its ownership interests of, among other Persons, its Subsidiaries, pursuant to the Security Agreement, which security interest shall be perfected to the extent required therein and shall be prior to all other Liens.
(c) In the event Borrower or arising:
any other Credit Party acquires any registered intellectual property at any time after the Closing Date, such Person shall (i) any promptly notify the Collateral Agent and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) execute, or cause to the extent relating to the Unfunded Capital Commitments of the Investors constituting be executed, such documents and instruments as Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toAgent, in each case of clauses its reasonable discretion, deems necessary to evidence and perfect its Liens on security interests in such assets (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all Intellectual Property Security Agreements).
(d) Borrower shall, and shall cause each of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments its Domestic Subsidiaries (other than Permitted Investments deposited in or credited Excluded Subsidiaries) to, execute and cause to any be executed such account)further documents and instruments as Collateral Agent, to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its reasonable discretion, (ii) deems necessary to evidence and perfect its liens and security interests in the term “Collateral” shall not include any Portfolio Investment. Borrower authorizes, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection directs and permits Collateral Agent to file Uniform Commercial Code financing statements with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition respect to the Collateral Accounts as are required under any relevant Uniform Commercial Code, including financing statements that will not be considered indicate the Collateral as “Collateralall assets” and of Borrower or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the Uniform Commercial Code of the jurisdiction wherein such other accounts shall not be subject to control agreements financing statement or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that amendment is not “Collateral”, except in connection filed or as being of an equal or lesser scope or with any Swap Agreement, as provided thereingreater detail.
Appears in 2 contracts
Sources: Loan Agreement (HC Government Realty Trust, Inc.), Loan Agreement (HG Holdings, Inc.)
Collateral. Subject to the terms of the applicable Collateral DocumentsThe Obligations, to secure the payment including, without limitation, Rate Management Obligations and performance of the Obligations hereunderBanking Services Obligations, pursuant to a Collateral Account Pledgeshall be secured by (a) valid, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantperfected, and shall pledge and/or assign by way of securityenforceable Liens on all right, to the Administrative Agenttitle, for the benefit and interest of each of the Secured PartiesCredit Parties and each Subsidiary in all capital stock and other Equity Interests held by such Person in each of its Subsidiaries, as applicablewhether now owned or hereafter formed or acquired, a and all Proceeds thereof, and (b) valid, perfected, first prioritypriority and enforceable Liens on all right, security title, and interest of each of the Credit Parties and ▇▇▇▇ each Subsidiary in all personal property, fixtures, and on its interests in the followingreal estate, whether now owned or hereafter acquired or arising:
(i) any , and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toProceeds thereof, in each case subject to Permitted Liens. Holdings will cause 100% of clauses the issued and outstanding Equity Interests of each of direct and indirect Subsidiary of Holdings to be subject at all times to a first priority, perfected Lien and pledge in favor of Agent pursuant to the terms and conditions of this Agreement, and the applicable Collateral Documents or other security documents as Agent shall reasonably request. Notwithstanding the foregoing, the Lien of Agent shall not extend to and Collateral (x), or any asset or property comprising the Collateral) shall not include the following Property (yall of the following being the “Excluded Assets”): (i) and (z)other than Accounts, any and all representationslease, warrantieslicense, covenants and other agreements permit or agreement to which any Credit Party is a party to the extent, but only to the extent, that such a grant would, under the terms of such Investors lease, license, permit or guarantors contained thereinagreement, result in a breach of the terms of, invalidate, or constitute a default under, such lease, license, permit or agreement or to the extent any requirement of law prohibits the grant of a Lien thereon; (ii) any “intent to use” applications for Trademarks for which a statement of use has not been filed and all duties accepted with the United States Patent and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
Trademark Office; (iii) any and all agreements, instruments and other documents those assets as to which Agent determines in its Permitted Discretion the cost of every kind obtaining a Lien therein in favor of Agent or description the perfection thereof are excessive in relation to the extent evidencing or supporting obligations under any of benefit to the foregoing Collateral and any and all security and other property with respect to Lenders afforded by such Collateral;
Lien, (iv) each Collateral Accountequipment owned by a Credit Party that is subject to a purchase money lien or Capitalized Lease permitted hereunder, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any other Intellectual Property if, after giving effect to Sections 9-406, 9-407, 9-408 or 9-409 of the foregoing Collateral includingUCC, without limitationthe grant of a Lien or a security interest in such Intellectual Property would result in the cancellation or voiding of such Intellectual Property. Furthermore, all the Lien of Agent need not be perfected, until otherwise required by the records of Agent or the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited Required Lenders, on vehicles which are subject to a Collateral Account) to certificate of title law (collectively, the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded ProceedsVehicles”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (McBc Holdings, Inc.), Credit and Guaranty Agreement (McBc Holdings, Inc.)
Collateral. Subject to the terms of the applicable Collateral Documents, to To secure the full and complete payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementSecured Obligations, the related financing statements Borrower shall execute and deliver or cause to be executed and delivered the documents described below covering the property and collateral described in this Section 6.14 (which, together with any other related documentsproperty and collateral which may now or hereafter secure the Secured Obligations or any part thereof, is sometimes herein called the Guarantor shall grant“Collateral”):
(a) The Borrower will, and shall pledge and/or assign by way will cause each of securityits Material Domestic Subsidiaries to, grant to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, priority security interest (subject only to Permitted Liens) in all of its Accounts, chattel paper, instruments, documents, books, records, letter-of-credit rights, Inventory, machinery, equipment, Rolling Stock, financial assets, investment property, contract rights, deposit accounts, trademarks, patents, copyrights, other material intellectual property, payment intangibles, other general intangibles, commercial tort claims, 100% of Equity Interests in its Material Domestic Subsidiaries and ▇▇▇▇ 66% of Equity Interests in Foreign Subsidiaries owned directly by the Borrower or any Domestic Subsidiary, and on its interests in other personal property subject to the followingLien granted pursuant to the Security Agreement, whether now owned or hereafter acquired acquired, and all products and cash and non-cash proceeds thereof, pursuant to the Security Agreement, provided in all cases that, notwithstanding anything to the contrary herein or arising:
in the other Loan Documents, (i) any perfection and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not priority in such collateral shall be limited to the right extent that perfection may be obtained (A) by the filing of a centralized UCC-1 financing statement, (B) by patent, trademark or copyright office filings in the United States of America (provided, that following the Closing Date the Administrative Agent shall only perfect its security interest in after-acquired patents, trademarks and copyrights to draw down Investor Capital Contributions the extent such intellectual property is material to the business of any Loan Party as reasonably determined by such Loan Party), (C) by possession and indorsement of stock certificates, chattel paper and instruments, (D) automatically pursuant to the UCC, (E) by entering into deposit account or securities account control agreements, (F) by the filing of UCC-1 financing statements on such Unfunded Capital Commitments from such Investors Aggregates constituting as-extracted collateral in the applicable real property records, (G) by compliance with the procedures set forth in any applicable certificate of title statutes for perfecting a Lien on Rolling Stock, including the notation of the Administrative Agent’s Lien on the certificates of title therefor, but only to the extent authorized under Section 6.14(c), and to issue Investor Capital Calls (H) in the case of locomotives and railcars, by the filing of a mortgage or security agreement with respect thereto;
the Surface Transportation Board of the U.S. Department of Transportation, and (ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but security interest shall not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding cover (A) any funds properly withdrawn from fixtures or real property, (B) any assets subject to a Collateral Account Lien permitted by clause (f) of the definition of “Permitted Liens”, or that could be withdrawn pursuant (C) any assets with respect to which there are effective and enforceable legal restrictions against the granting of a security interest therein. Notwithstanding clause (i)(F) above to the Credit Agreement if deposited contrary, the Administrative Agent will not perfect its Lien on Aggregates constituting as-extracted collateral by the filing of financing statements in the applicable real property records until the first to occur of (1) an Event of Default, (2) Availability is less than $60,000,000, or credited (3) notice of a transaction described in clause (b) below (in which case the Administrative Agent shall only perfect its Lien on Aggregates constituting as-extracted collateral located at the relevant property).
(b) The Borrower shall, and shall cause each Subsidiary to, provide the Administrative Agent with not less than 30 days prior written notice of its intention to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments ▇▇▇▇▇ ▇ ▇▇▇▇ securing Debt (other than Permitted Investments deposited the Obligations) on the Mill Creek, Bridgeport, Midlothian, Hunter or Oro Grande plants or any other real estate at which Aggregates with a Value equal to or exceeding $5,000,000 are located, which notice shall include a legal description of such real estate and the name of the fee owner thereof. Neither the Borrower nor any Subsidiary shall ▇▇▇▇▇ ▇ ▇▇▇▇ described in the preceding sentence until after such time as the Administrative Agent has filed a UCC-1 financing statement in the applicable real property records perfecting its Lien in any Aggregates constituting as-extracted collateral that are mined or credited extracted from such real estate.
(c) Within 60 days following the Closing Date, the Borrower shall, and shall cause each Subsidiary to, (i) use commercially reasonable efforts to any such account)provide the Administrative Agent with each certificate of title evidencing Rolling Stock then constituting Collateral and a mortgage or security agreement describing all locomotives and railcars then constituting Collateral, in form and substance satisfactory to make payments or distributions to Investors in accordance the Administrative Agent, for filing with the terms hereof or for any other purpose permitted under Surface Transportation Board of the Guarantor’s Governing Documents and this Credit AgreementU.S. Department of Transportation, and (Bii) agree with the proceeds Administrative Agent as to which items of such withdrawn funds (Rolling Stock evidenced by a certificate of title shall have the items Administrative Agent’s Lien noted on the certificates of title therefor in (A) and (B)order to provide the Administrative Agent with perfected Liens on such Rolling Stock with significant NOLV while excluding such Rolling Stock with de minimis value. Following the receipt of such mortgage or security agreement, collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to Administrative Agent shall file the contrary in this Credit Agreement or any other Loan Document (i) same with the term “Collateral” shall not include the Unfunded Capital Commitments Surface Transportation Board of the SOX InsidersU.S. Department of Transportation, including but not limited to and following receipt of such certificates of title and the right to draw down Investor Capital Contributions on completion of such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection agreement with the Swap AgreementsBorrower as to which of such certificates shall have the Administrative Agent’s Lien noted thereon, (iv) the Collateral may be subject Administrative Agent shall arrange for such notations and otherwise perfect such Lien. As the Borrower and its Subsidiaries from time to Permitted Lienstime acquire additional locomotive and railcars, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition they shall give prompt notice thereof to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and shall provide to the Secured Parties shall not have any Lien on any property that is not “Collateral”, except Administrative Agent additional mortgages and security agreements (or amendments or supplements to previous mortgages and security agreements) describing such additional locomotives and railcars and in connection form and substance satisfactory to the Administrative Agent for filing with any Swap Agreement, as provided therein.the Surface Transportation Board of the U.S.
Appears in 2 contracts
Sources: Credit Agreement (Texas Industries Inc), Credit Agreement (Texas Industries Inc)
Collateral. Subject to the terms of the applicable Collateral DocumentsThe Obligations, to secure the payment including, without limitation, Rate Management Obligations and performance of the Obligations hereunderBanking Services Obligations, pursuant to a Collateral Account Pledgeshall be secured by (a) valid, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantperfected, and shall pledge and/or assign by way of securityenforceable Liens on all right, to the Administrative Agenttitle, for the benefit and interest of each of the Secured PartiesCredit Parties and each Subsidiary in all capital stock and other Equity Interests held by such Person in each of its Subsidiaries, as applicablewhether now owned or hereafter formed or acquired, a and all Proceeds thereof, and (b) valid, perfected, first prioritypriority and enforceable Liens on all right, security title, and interest of each of the Credit Parties and ▇▇▇▇ each Subsidiary in all personal property, fixtures, and on its interests in the followingreal estate, whether now owned or hereafter acquired or arising:
(i) any , and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toProceeds thereof, in each case subject to Permitted Liens. Holdings will cause 100% of clauses the issued and outstanding Equity Interests of each of direct and indirect Subsidiary of Holdings to be subject at all times to a first priority, perfected Lien and pledge in favor of Agent pursuant to the terms and conditions of this Agreement, and the applicable Collateral Documents or other security documents as Agent shall reasonably request. Notwithstanding the foregoing, the Lien of Agent shall not extend to and Collateral (x), or any asset or property comprising the Collateral) shall not include the following Property (yall of the following being the “Excluded Assets”): (i) and (z)other than Accounts, any and all representationslease, warrantieslicense, covenants and other agreements permit or agreement to which any Credit Party is a party to the extent, but only to the extent, that such a grant would, under the terms of such Investors lease, license, permit or guarantors contained thereinagreement, result in a breach of the terms of, invalidate, or constitute a default under, such lease, license, permit or agreement or to the extent any requirement of law prohibits the grant of a Lien thereon; (ii) any “intent to use” applications for Trademarks for which a statement of use has not been filed and all duties accepted with the United States Patent and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
Trademark Office; (iii) any and all agreements, instruments and other documents those assets as to which Agent determines in its Permitted Discretion the cost of every kind obtaining a Lien therein in favor of Agent or description the perfection thereof are excessive in relation to the extent evidencing or supporting obligations under any of benefit to the foregoing Collateral and any and all security and other property with respect to Lenders afforded by such Collateral;
Lien, (iv) each Collateral Accountequipment owned by a Credit Party that is subject to a purchase money lien or Capitalized Lease permitted hereunder, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any other Intellectual Property if, after giving effect to Sections 9-406, 9-407, 9-408 or 9-409 of the foregoing Collateral includingUCC, without limitationthe grant of a Lien or a security interest in such Intellectual Property would result in the cancellation or voiding of such Intellectual Property. Furthermore, all the Lien of Agent need not be perfected, until otherwise required by the records of Agent or the Guarantor concerning any of the foregoing Collateral; excluding Required Lenders, (Aa) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited on vehicles which are subject to a Collateral Account) to certificate of title law (collectively, the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account“Excluded Vehicles”), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (Bb) deposit accounts which have been established and are used in the proceeds ordinary course for the sole purpose of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) ▇▇▇▇▇ cash supporting local operations so long as the term “Collateral” shall amounts on deposit in such deposit accounts do not include at any time exceed $5,000 in the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on aggregate for all such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretionaccounts, (ii) making payroll and withholding tax payments related thereto and other employee wage and benefit payments to or for the term “Collateral” shall not include any Portfolio Investmentbenefit of employees and unpaid employee compensation (including salaries, any Portfolio Assets or any Excluded Proceedswages, (iii) benefits, health savings and expense reimbursements), but only to the term “Collateral” shall not include any collateral posted or received extent that the aggregate amount on deposit in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank all such deposit accounts or securities accounts in addition to does not exceed 110% of the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions payment obligations described herein for the current pay period), and (viiii) escrow, trust and fiduciary accounts (collectively, the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “CollateralExcluded Accounts”, except in connection with any Swap Agreement, as provided therein) .
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (McBc Holdings, Inc.), Credit and Guaranty Agreement (McBc Holdings, Inc.)
Collateral. Subject To secure the payment, promptly when due, and the punctual performance, of all of the Obligations, and satisfaction by Borrowers of all covenants and undertakings contained in the Credit Agreement and the Loan Documents, each Existing Borrower reconfirms the prior grant of the security interest in and lien upon and to, all of its right, tide and interest in and to the terms of the applicable Collateral Documents(including as set forth below), whether now owned or hereafter acquired, created or arising and wherever located and Joining Borrower hereby assigns and grants to secure the payment and performance of the Obligations hereunder, pursuant to Lender a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantsecurity interest in, and shall pledge and/or assign by way a right of securitysetoff against, to the Administrative Agentany and all right, for the benefit title and interest of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ such Borrower in and on its interests in to all of the following, whether now owned or hereafter existing or owned, acquired or arising:
arising hereafter: (i) any all accounts, Payment Intangibles, Instruments and all Unfunded Capital Commitments other rights to receive payments of Borrower (including without limitation the InvestorsAccounts), whether now existing or hereafter committedarising or acquired, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) all General Intangibles (including without limitation, contract rights and Intellectual Property), Chattel Paper, Documents, Supporting Obligations, Letter of Credit Rights, Commercial Tort Claims set forth on Schedule 2.13 to the extent Credit Agreement, remedies, guarantees and collateral evidencing, securing or otherwise relating to or associated with the Unfunded Capital Commitments of the Investors constituting Collateral property in clause subpart (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and without limitation all rights to compel performance of enforcement and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
collection, (iii) any and all agreementsCommercial Lockboxes, instruments all Government Lockboxes, all Collection Accounts and other documents deposit accounts into which any of every kind the Collections or description Advances are deposited, all funds received thereby or deposited therein, and any checks or instruments from time to time representing or evidencing the extent same, (iv) all books and records of Borrowers evidencing or supporting obligations under relating to or associated with any of the foregoing, (v) all infounation and data compiled or derived by Borrowers with respect to any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such accountinformation and data subject to legal restrictions of patient confidentiality), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) all collections, Accessions, receipts and Proceeds derived from any of the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 2 contracts
Sources: Credit Agreement (Clarient, Inc), Credit Agreement (Clarient, Inc)
Collateral. Subject to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, As collateral security for the benefit of each prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the Secured PartiesObligations, the Company hereby pledges, grants, assigns, hypothecates and transfers to the Agent on behalf of the Purchasers as applicablehereinafter provided, a first priority, security interest and ▇▇▇▇ in and on its interests in Lien upon all of the followingCompany’s right, title and interest in, to and under all personal property and other assets of the Company, whether now owned or hereafter acquired by or arising:
(i) any and all Unfunded Capital Commitments arising in favor of the InvestorsCompany, whether now existing or hereafter committedcoming into existence, whether owned or consigned by or to the Company, or leased from or to the Company and regardless of wherever located, except for the Excluded Collateral (all being collectively referred to herein as “Collateral”) including:
a. the Company’s direct or indirect ownership interest in the respective shares of capital stock of the Issuers and all other shares of capital stock of whatever class of the Issuers, now or hereafter owned by the Company, together with in each case the certificates evidencing the same (collectively, the “Pledged Stock”);
b. all shares, securities, moneys or property representing a dividend on any of the Pledged Stock, or representing a distribution or return of capital upon or in respect of the Pledged Stock, or resulting from a split-up, revision, reclassification or other like change of the Pledged Stock or otherwise received in exchange therefor, and any subscription warrants, rights or options issued to the holders of, or otherwise in respect of, the Pledged Stock;
c. without affecting the obligations of the Company under any provision prohibiting such action hereunder or under the Purchase Agreement or the Notes, in the event of any consolidation or merger in which any Issuer is not the surviving corporation, all shares of each class of the capital stock of the successor corporation (unless such successor corporation is the Company itself) formed by or resulting from such consolidation or merger (the Pledged Stock, together with all other certificates, shares, securities, properties or moneys as may from time to time be pledged hereunder pursuant to clause (a) or (b) above and this clause (c) being herein collectively called the “Stock Collateral”);
d. all accounts and general intangibles (each as defined in the Uniform Commercial Code) of the Company constituting any right to the payment of money, including (but not limited to) all moneys due and to become due to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors Company in respect of any loans or advances for the purchase price of Inventory or Equipment or other goods sold or leased or for services rendered, all moneys due and to issue Investor Capital Calls with respect theretobecome due to the Company under any guarantee (including a letter of credit) of the purchase price of Inventory or Equipment sold by the Company and all tax refunds (such accounts, general intangibles and moneys due and to become due being herein called collectively “Accounts”);
e. all instruments, chattel paper or letters of credit (iieach as defined in the Uniform Commercial Code) to of the extent Company evidencing, representing, arising from or existing in respect of, relating to, securing or otherwise supporting the payment of, any of the Accounts, including (but not limited to) promissory notes, drafts, bills of exchange and trade acceptances (herein collectively called “Instruments”);
f. all inventory (as defined in the Uniform Commercial Code) of the Company and all goods obtained by the Company in exchange for such inventory (herein collectively called “Inventory”);
g. all Intellectual Property of the Company and all other accounts or general intangibles of the Company not constituting Intellectual Property or Accounts;
h. all equipment (as defined in the Uniform Commercial Code) of the Company (herein collectively called “Equipment”);
i. each contract and other agreement of the Company relating to the Unfunded Capital Commitments sale or other disposition of Inventory or Equipment;
j. all documents of title (as defined in the Uniform Commercial Code) or other receipts of the Investors constituting Collateral Company covering, evidencing or representing Inventory or Equipment (herein collectively called “Documents”);
k. all rights, claims and benefits of the Company against any Person arising out of, relating to or in clause (i) aboveconnection with Inventory or Equipment purchased by the Company, (x) including, without limitation, any such rights, claims or benefits against any Person storing or transporting such Inventory or Equipment;
l. all estates of the Constituent DocumentsCompany in land together with all improvements and other structures now or hereafter situated thereon, (y) the Subscription Agreements and Side Letterstogether with all rights, if anyprivileges, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including tenements, hereditaments, appurtenances, easements, including, but not limited to, rights and easements for access and egress and utility connections, and other rights now or hereafter appurtenant thereto (“Real Estate”);
m. in each case addition to, and without in any way limiting any of clauses (x), (y) and (z)the foregoing, any and all representationsaccounts, warrantieschattel paper, covenants commercial tort claims, deposit accounts, documents, equipment, financial assets, fixtures, general intangibles, goods, instruments, inventory, investment property, letter-of-credit rights, letters-of-credit and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any money of the foregoing Collateral and any and Company (as all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretoterms are defined in the Uniform Commercial Code); and
(v) any and n. all proceeds of any other tangible or intangible property of the foregoing Collateral Company, including, without limitation, all proceeds, products and accessions of the records of the Guarantor concerning and to any of the foregoing Collateral; excluding property of the Company described in clauses (Aa) through (m) above in this Section 3 (including, without limitation, any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) proceeds of insurance thereon), and, to the extent usedrelated to any property described in said clauses or such proceeds, pursuant to products and accessions, all books, correspondence, credit files, records, invoices and other papers, including without limitation all tapes, cards, computer runs and other papers and documents in the terms possession or under the control of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement Company or any other Loan Document (i) computer bureau or service company from time to time acting for the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinCompany.
Appears in 2 contracts
Sources: Security Agreement (Internet Commerce Corp), Subsidiary Security Agreement (Internet Commerce Corp)
Collateral. Subject 4.1 In consideration of MSL granting or continuing to make available the Margin Facilities to the terms Customer, the Customer, as beneficial owner hereby charges, assigns and releases to MSL the following assets of the applicable Collateral Documents, Customer (as Collateral) as continuing security for the punctual payment to secure MSL on the payment respective due dates of all amounts outstanding under the Margin Facilities and all other moneys and sums due or owing from the Customer to MSL from time to time pursuant to this Agreement and for the performance of all the Obligations hereunder, obligations of the Customer to MSL from time to time pursuant to a Collateral Account Pledgethis Agreement:-
(a) all the Customer’s rights, a Security Agreementtitle and interest in and to the Securities which shall at any time hereafter and from time to time be purchased or held by MSL or its nominee for or on account of the Customer pursuant to this Agreement and any Securities deposited with MSL whether pursuant to Clause 5.1 of this Section II or otherwise, together with all dividends or interest paid or payable after the related financing statements date hereof on or in respect of any of such Securities and the other related documents, the Guarantor shall grant, and shall pledge and/or assign all accretions thereto by way of securitybonus, distributions, options, rights or otherwise howsoever accruing or offered at any time hereafter (together the "Charged Securities"); and
(b) all and any funds standing to the Administrative Agent, credit of the Margin Account and all funds held by MSL for or on account of the Customer from time to time.
4.2 MSL is hereby irrevocably authorized to hold the Charged Securities in its own name or in the name of its nominee or be deposited in a safe custody in a designated account with its bankers or with any other institution which provides facilities for the benefit safe custody of each documents. In the case of Securities in Hong Kong, such institution shall be acceptable to the SFC as a provider of safe custody services and the Customer hereby irrevocably authorizes MSL to do and execute any and all acts or things and documents necessary to transfer, complete and/or vest title to all of the Secured PartiesCharged Securities to it or its nominee and to do all such things and execute all such documents as it may reasonably require in order to perfect the security given hereunder.
4.3 The security given by the Customer hereunder shall be in addition to and may be enforced by MSL without prejudice to any other guarantee, as applicablepledge, lien, indemnity, assurance, mortgage, charge, debenture or collateral security or other power, right or remedy now or at any time hereafter held or available to MSL in respect of the Margin Facilities or the obligations of the Customer hereunder and shall be a first prioritycontinuing security notwithstanding the death, security bankruptcy, liquidation, winding-up, insolvency, incapacity or any change in the constitution of the Customer or any intermediate or partial payment or settlement of account or satisfaction of the whole or any part of the amounts outstanding under the Margin Facilities or any obligations of the Customer under this Agreement.
4.4 The Customer hereby irrevocably undertakes to MSL that all the Customer’s rights, title and interest and ▇▇▇▇ in and to the Collateral will at all relevant times constitute the legal and unencumbered property of the Customer free from any trust, lien, charge, mortgage, pledge or other encumbrance (save as created or required hereunder). The Customer shall provide MSL with signed transfers or other instruments necessary for MSL to exercise its rights under this Agreement.
4.5 All dividends, interests, income, payments or other distributions received by MSL in respect of the Charged Securities will be credited to the Margin Account on its interests in receipt by MSL.
(a) The Customer hereby represents and warrants to MSL that during the following, whether now owned or hereafter acquired or arisingcontinuance of the Charge:
(i) any the Customer has and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited will maintain unencumbered and absolute title to the right Charged Securities (subject only to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretothe Charge);
(ii) the Charge constitutes and will continue to constitute the extent relating to the Unfunded Capital Commitments valid and legally binding obligations of the Investors constituting Collateral Customer enforceable in clause accordance with its terms.
(b) The Customer hereby undertakes and agrees that during the continuance of the Charge, the Customer shall:
(i) abovenot mortgage, charge, pledge or otherwise encumber or assign, transfer or otherwise deal with or grant or suffer to arise any third party rights over or against the whole or any part of the Collateral or purport so to do ranking in priority to or pari passu with the Charge, except in MSL’s favour;
(xii) deposit with MSL or to its order, at such place as MSL may from time to time direct, all certificates, instruments and evidence of title to the Constituent DocumentsCharged Securities, (y) the Subscription Agreements and Side Letterstogether, if anywhere appropriate, with all such necessary forms of such Investors and (z) any and all guaranties transfer or other instructions, duly executed in favour of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toMSL, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights as MSL may from time to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretotime require;
(iii) at any time and all agreementsfrom time to time, instruments execute and deliver such further assignments, charges, authorities and other documents of every kind as MSL may from time to time require for perfecting its title to or description for vesting or enabling MSL to vest the extent evidencing or supporting obligations under any full benefit of the foregoing Collateral and any and all security in its favour, which assignments, charges, authorities and other property with respect to documents shall be prepared by MSL or on its behalf, at the cost of the Customer, and shall contain such Collateral;provisions for MSL’s benefit as MSL may reasonably require, for which purposes the Customer hereby irrevocably appoints MSL as the Customer’s lawful attorney; and
(iv) each Collateral Accountobtain and maintain in full force and effect all governmental and other approvals, including but not limited to any authorities, licenses and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received consents required in connection with the Swap Agreements, (iv) Charge and to do or cause to be done all other acts and things necessary or desirable for the Collateral may be subject performance of all the obligations of the Customer pursuant to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap this Agreement, as provided therein.
Appears in 2 contracts
Collateral. Subject For the purposes of this Agreement, all of the following property now owned or at any time hereafter acquired by a Grantor or in which a Grantor now has or at any time in the future may acquire any right, title or interests (to the terms extent of the applicable Collateral Documentssuch right, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agenttitle or interest) and, for the benefit avoidance of each of doubt, wheresoever located, is collectively referred to as the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising“Collateral”:
(ia) all accounts, chattel paper, deposit accounts, documents, equipment, general intangibles, Intellectual Property, instruments, inventory, investment property, letters of credit, letter of credit rights and any and all Unfunded Capital Commitments supporting obligations related to any of the Investorsforegoing;
(b) the commercial tort claims described on Schedule 1 and on any supplement thereto received by the Collateral Trustee pursuant to Section 5.8;
(c) all books and records pertaining to the other property described in this Section 3.1;
(d) all cash or Cash Equivalents;
(e) all property of such Grantor held by any Secured Party, whether now including all property of every description, in the custody of or hereafter committedin transit to such Secured Party for any purpose, including safekeeping, collection or pledge, for the account of such Grantor or as to which such Grantor may have any right or power, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretocash;
(iif) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause all other goods (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any fixtures) and all funds personal property of such Grantor, whether tangible or intangible and financial assets on deposit therein or credited theretowherever located; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Accountg) to the extent usednot otherwise included, pursuant to the terms all proceeds of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”)foregoing. Notwithstanding the foregoing foregoing, no Lien or anything security interest is hereby granted on any Excluded Assets, and Excluded Assets shall not be deemed to constitute “Collateral.” If any property of any Grantor shall cease to be “Excluded Assets,” a Lien on and security interest shall be deemed immediately granted thereon under this Agreement in favor of the contrary in this Credit Agreement or any other Loan Document (i) Collateral Trustee for the term benefit of the Secured Parties, and such property shall constitute “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinhereunder.
Appears in 2 contracts
Sources: Security Agreement (Unisys Corp), Security Agreement (Unisys Corp)
Collateral. Subject As collateral security for the payment in full when due (whether at stated maturity, by acceleration or otherwise) of its Secured Obligations, each Obligor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, Agent for the benefit of each the Secured Parties as hereinafter provided a security interest in all of such Obligor’s right, title and interest in, to and under all of the Secured Partiesfollowing property and assets, as applicablein each case whether tangible or intangible, a first prioritywherever located, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned by such Obligor or hereafter acquired and whether now existing or arising:hereafter coming into existence (all of the property described in this Section 4 being collectively referred to herein as “Collateral”):
(ia) any all Accounts, all Chattel Paper, all Deposit Accounts, all Documents, all General Intangibles (including all Intellectual Property), all Instruments (including all Promissory Notes), all Portfolio Investments, all Pledged Debt, all Pledged Equity Interests, all Investment Property not covered by the foregoing (including all Securities, all Securities Accounts and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls Security Entitlements with respect theretothereto and Financial Assets carried therein, and all Commodity Accounts and Commodity Contracts), all letters of credit and Letter-of-Credit Rights, all Money and all Goods (including Inventory and Equipment), and all Commercial Tort Claims;
(iib) to the extent relating related to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveany Collateral, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoSupporting Obligations;
(iiic) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under related to any of the foregoing Collateral and any and Collateral, all security books, correspondence, credit files, records, invoices and other property with respect papers (including all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Obligor or any computer bureau or service company from time to time acting for such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretoObligor); and
(vd) any and all proceeds Proceeds of any of the foregoing Collateral includingCollateral. IT BEING UNDERSTOOD, without limitationHOWEVER, all of that in no event shall the records of the Guarantor concerning any of the foregoing Collateral; excluding security interest granted under this Section 4 attach to (A) any funds properly withdrawn from contract, property rights, obligation, instrument or agreement to which an Obligor is a Collateral Account party (or that could be withdrawn pursuant to any of its rights or interests thereunder) if the Credit Agreement if deposited grant of such security interest would constitute or credited to result in either (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Obligor therein or (ii) a Collateral Account) to the extent used, breach or termination pursuant to the terms of the Guarantor’s Governing Documentsof, to purchase Portfolio Investments or a default under, any such contract, property rights, obligation, instrument or agreement (other than Permitted Investments deposited in or credited to the extent that any such accountterms would be rendered ineffective by Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code as in effect in the relevant jurisdiction), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) any Excluded Assets, and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or notwithstanding anything to the contrary provided in this Credit Agreement or any other Loan Document (i) Agreement, the term “Collateral” shall not include include, and the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts Obligors shall not be subject deemed to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have granted a security interest in, any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinExcluded Assets.
Appears in 2 contracts
Sources: Guarantee, Pledge and Security Agreement, Guarantee, Pledge and Security Agreement (Credit Suisse Park View BDC, Inc.)
Collateral. Subject The Borrower will (a) warrant and defend the ---------- right, title and interest of the Lender and the Security Agent in and to the terms Collateral against the claims and demands of the applicable Collateral Documentsall persons whomsoever; (b) service, or cause to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitationbe serviced, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors Mortgage Loans in accordance with the terms hereof requirements of the issuers of Master Commitments and Purchase Commitments covering the same and all applicable FHA and VA requirements (including without limitation taking all actions necessary to enforce the obligations of the obligors under such Mortgage Loans) and service, or for any other purpose permitted under cause to be serviced, all Mortgage Loans backing Mortgage-backed Securities in accordance with applicable governmental requirements and the Guarantor’s Governing Documents requirements of issuers of Purchase Commitments covering the same; (c) hold all escrow funds collected in respect of Mortgage Loans and this Credit Agreementmortgage loans backing Mortgage-backed Securities in trust, without commingling the same with non-custodial funds, and apply the same for the purposes for which such funds were collected; (Bd) comply in all respects with the proceeds terms and conditions of such withdrawn funds all Master Commitments and Purchase Commitments, and all extensions, renewals and modifications or substitutions thereof or thereto, and deliver or cause to be delivered to the applicable Investor the Mortgage Loans and Mortgage-backed Securities to be sold under each Purchase Commitment not later than three (3) Business Days prior to the items in (A) expiration thereof; and (B)e) maintain, collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything and, upon request, shall make available to the contrary Lender, the Agent or the Security Agent the originals, or copies in this Credit Agreement or any other Loan Document (i) case where the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited original has been delivered to the right Security Agent or to draw down Investor Capital Contributions on such Unfunded Capital an Investor, of its Mortgage Notes, Mortgages, Purchase Commitments, or any Master Commitments, Hedging Contracts and all related Mortgage Loan documents and instruments, and all files, surveys, certificates, correspondence, appraisals, computer programs, tapes, discs, cards, accounting records and other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition information and data relating to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 2 contracts
Sources: Warehouse Credit Agreement (E Loan Inc), Warehouse Credit Agreement (E Loan Inc)
Collateral. Subject With respect to the terms Collateral, any Lien purported to be created under any Security Document shall cease to be, or shall be asserted by the Borrower, Parent or any Subsidiary Guarantor not to be, a valid and perfected Lien on any material Collateral, with the priority required by the applicable Security Document, except as a result of (A) a Disposition of the applicable Collateral in a transaction permitted under the Loan Documents, to secure (B) the payment and performance release thereof as provided in the applicable Security Document or Section 9.17 or (C) as a result of the Obligations hereunderAdministrative Agent’s failure (x) to maintain possession of any stock certificate, pursuant promissory note or other instrument delivered to a Collateral Account Pledgeit under any Security Document or (y) to file Uniform Commercial Code (or equivalent) continuation statements; then, a Security Agreementand in every such event (other than an event with respect to Parent described in clause (f) of this Section 7.01), and at any time thereafter during the continuance of such event, the related financing statements and Administrative Agent may with the other related documents, the Guarantor shall grantconsent, and shall pledge and/or assign at the request, of the Required Lenders, by way of security, notice to the Administrative AgentBorrower, for the benefit of each take any or all of the Secured Partiesfollowing actions, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in at the following, whether now owned same or hereafter acquired or arisingdifferent times:
(i) declare the 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 Loans so declared to be due and payable, together with accrued interest thereon and all Unfunded Capital Commitments fees, including any Make-Whole Amount and prepayment premium, and other obligations of the InvestorsBorrower accrued hereunder, whether now shall become due and payable immediately without presentment, demand, protest or hereafter committedother notice of any kind, including but not limited to all of which are hereby waived by the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;Borrower; and
(ii) exercise on behalf of itself, the Lenders all rights and remedies available to it, the extent relating Lenders under the Loan Documents and applicable law. In case of any event with respect to the Unfunded Capital Commitments of the Investors constituting Collateral Parent described in clause (if) aboveof this Section 7.01, (x) the Constituent Documentsprincipal of the Loans then outstanding, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any together with accrued interest thereon and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited tofees, in each case of clauses (x)Make-Whole Amount, (y) and (z), any and all representations, warranties, covenants prepayment premium and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors the Borrower accrued hereunder, shall automatically become due and payable without presentment, demand, protest or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds notice of any of the foregoing Collateral including, without limitationkind, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected which are hereby waived by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinBorrower.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Tupperware Brands Corp)
Collateral. Subject to the terms of the applicable Collateral Documents, to To secure the full and complete payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documentsNotes, the Guarantor shall grantexecute and deliver or cause to be executed and delivered the documents described below covering the property and collateral described in this Section 4.9 (which, together with any other property and collateral which may now or hereafter secure the Notes or any part thereof, is sometimes herein called the "Collateral") as follows:
(a) On or before January 31, 2006, the Guarantor will, and shall pledge and/or assign by way will cause each of securitythe Company and the Subsidiary Guarantors to, grant to the Administrative Collateral Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, priority security interest and ▇▇▇▇ in and on substantially all of its interests personal property, including but not limited to, accounts, chattel paper, instruments, documents, books, records, inventory, machinery, equipment, trademarks, patents, copyrights, other intellectual property, payment intangibles, other general intangibles, commercial tort claims, Equity Interests in its Subsidiaries (provided that not more than 65% of the Equity Interests of any Pledged Foreign Subsidiary shall be required to be subject to such security interest except as otherwise provided in the followingSecurity Agreement), other investment property and other personal property described in the Security Agreement, whether now owned or hereafter acquired or arising:acquired, and all products and cash and noncash proceeds thereof, pursuant to the Security Agreement and the Security Documents, which shall be in form and substance reasonably satisfactory to the Required Holders.
(ib) any On or before January 31, 2006, the Guarantor will, and all Unfunded Capital Commitments of will cause the Investors, whether now or hereafter committed, including but not limited Company and each Subsidiary Guarantor to deliver to the right Administrative Agent certificates of insurance and endorsements to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls insurance policies naming the Collateral Agent as loss payee/mortgagee and/or additional insured, as applicable, with respect thereto;
to all Collateral and as may be required by Section 4.2 of this Agreement (ii) to the extent relating available) and the Security Documents.
(c) On or before January 31, 2006, the Guarantor will, and will cause the Company and each Subsidiary Guarantor, to deliver to the Unfunded Capital Commitments Administrative Agent counterparts of the Investors constituting Intercreditor Agreement executed by the Note Parties, each of the Secured Parties and the Collateral in clause Agent.
(id) aboveOn or before March 31, (x) 2006, the Constituent DocumentsGuarantor will, (y) and will cause the Subscription Agreements Company and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited each Subsidiary Guarantor to, grant to Collateral Agent, for the benefit of the Secured Parties, a first priority security interest in each case all of clauses (x), (y) and (z), any and all representations, warranties, covenants its Real Property pursuant to the Mortgages and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description Security Documents related to the extent evidencing or supporting obligations under any of Mortgages and the foregoing Collateral and any and all security and other property with respect Real Property, to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral includinginclude, without limitation, loan or mortgagee title commitments, flood certificates, and tax affidavits, together with payment of all related taxes and fees, all of which shall be in form and substance reasonably satisfactory to the records of Required Holders.
(e) To the extent that the real property located at Dane, Wisconsin, owned in connection with Traex Company has not been sold on or before June 30, 2006, the Guarantor concerning will, and will cause the Company and any applicable Subsidiary Guarantor, to grant a lien in such real property in the manner contempla▇▇▇ ▇▇ ▇▇▇▇▇on 4.9(d) on or prior to July 15, 2006.
(f) On or before January 31, 2006, certificates of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (resolutions or that could be withdrawn pursuant other action, incumbency certificates and/or other certificates of Responsible Officers of each Note Party, all in form and substance reasonably satisfactory to the Credit Agreement if deposited or credited Required Holders, which establish the identity and verify the authority and capacity of each Responsible Officer thereof authorized to act as a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received Responsible Officer in connection with the Swap AgreementsNote Documents to which such Note Party is a party.
(g) On January 31, 2006, the Guarantor shall cause special counsel to the Guarantor to deliver to the Noteholders an opinion of counsel (ivwhich shall be in customary form) with respect to the Security Documents executed and delivered on or prior to January 31, 2005 together with such board resolutions, officer's certificates, corporate and other documents and opinions of counsel relative to such Security Documents as the Required Holders shall reasonably request. Upon the earlier of (x) May 31, 2006 or (y) as soon as practicable (but in no event more than thirty days) after the occurrence of an Event of Default the Guarantor shall deliver to the Noteholders an opinion of counsel in the applicable foreign jurisdiction (which shall be in customary form) with respect to Security Documents executed and delivered on or prior to such date which pertain to the Pledged Foreign Subsidiaries.
(h) The Guarantor will, and will cause each of the Company and the Subsidiary Guarantors to execute and deliver and cause to be executed and delivered such further documents and instruments as the Required Holders reasonably deem necessary or desirable to evidence and perfect their Liens in the Collateral may be subject to Permitted Liens, (v) a Borrower or as set forth in the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinSecurity Documents.
Appears in 1 contract
Collateral. Subject As collateral security for the payment in full when due (whether at stated maturity, by acceleration or otherwise) of its Secured Obligations, each Obligor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, Agent for the benefit of each the Secured Parties as hereinafter provided a security interest in all of such Obligor’s right, title and interest in, to and under all of the Secured Partiesfollowing property and assets, as applicablein each case whether tangible or intangible, a first prioritywherever located, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned by such Obligor or hereafter acquired and whether now existing or arising:hereafter coming into existence (all of the property described in this Section 4, other than the property excluded pursuant to the proviso to this Section 4, being collectively referred to herein as “Collateral”):
(ia) any all Accounts, all Chattel Paper, all Deposit Accounts, all Documents, all General Intangibles (including all Intellectual Property), all Instruments (including all Promissory Notes), all Portfolio Investments, all Pledged Debt, all Pledged Equity Interests, all Investment Property not covered by the foregoing (including all Securities, all Securities Accounts and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls Security Entitlements with respect theretothereto and Financial Assets carried therein, and all Commodity Accounts and Commodity Contracts), all letters of credit and Letter-of-Credit Rights, all Money and all Goods (including Inventory and Equipment), and all Commercial Tort Claims;
(iib) to the extent relating related to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveany Collateral, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoSupporting Obligations;
(iiic) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under related to any of the foregoing Collateral and any and Collateral, all security books, correspondence, credit files, records, invoices and other property with respect papers (including all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Obligor or any computer bureau or service company from time to time acting for such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretoObligor); and
(vd) any and all proceeds Proceeds of any of the foregoing Collateral includingCollateral. PROVIDED, without limitationHOWEVER, all that in no event shall the security interest granted under this Section 4 attach to (and there shall be excluded from the definition of the records of the Guarantor concerning any of the foregoing “Collateral; excluding ”) (A) any funds properly withdrawn from contract, property rights, obligation, instrument or agreement to which an Obligor is a Collateral Account party (or that could be withdrawn pursuant to any of its rights or interests thereunder) if the Credit Agreement if deposited grant of such security interest would constitute or credited to result in either (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Obligor therein, (ii) a Collateral Account) to the extent used, breach or termination pursuant to the terms of the Guarantor’s Governing Documentsof, to purchase Portfolio Investments or a default under, any such contract, property rights, obligation, instrument or agreement (other than Permitted Investments deposited in or credited to the extent that any such accountterms would be rendered ineffective by Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code as in effect in the relevant jurisdiction, or (iii) any assets with respect to which applicable law prohibits the creation or perfection of such security interests therein (other than to the extent that any such prohibition is rendered ineffective by Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code as in effect in the relevant jurisdiction), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) any Excluded Assets, and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or notwithstanding anything to the contrary provided in this Credit Agreement or any other Loan Document (i) Agreement, the term “Collateral” shall not include include, and the Unfunded Capital Commitments of the SOX InsidersObligors shall not be deemed to have granted a security interest in, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, Excluded Assets and (ii2) the term “Collateral” shall not include any Portfolio InvestmentObligors, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition by notice to the Collateral Accounts that will not be considered “Collateral” Agent, exclude from the grant of a security interest provided above in this Section 4 (and such other accounts shall not be subject to control agreements or other restrictions and (vi) exclude from the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not definition of “Collateral”), except any Special Equity Interests designated by the Borrower in connection with reasonable detail to the Collateral Agent in such notice (it being understood that the Borrower may at any Swap Agreement, as provided thereinlater time rescind any such designation by similar notice to the Collateral Agent).
Appears in 1 contract
Sources: Guarantee, Pledge and Security Agreement (FS Investment Corp II)
Collateral. Subject to the terms of the applicable Collateral Documents, to To secure the full and complete payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements Borrowers shall execute and deliver or cause to be executed and delivered the documents described below covering the property described in this Section 5.1 (which, together with any other related documentsproperty which may now or hereafter secure the Obligations or any part thereof, is sometimes herein called the Guarantor "Collateral"):
(a) Each Borrower shall grant, and shall pledge and/or assign by way of security, grant to the Administrative Agent, Agent for the benefit of each of itself and the Secured Parties, as applicable, Banks a first priority, priority (subject only to Permitted Liens) security interest in all of its accounts, accounts receivable, equipment, machinery, fixtures, inventory, chattel paper, documents, instruments, and ▇▇▇▇ in and on its interests in the followinggeneral intangibles, whether now owned or hereafter acquired or arising:
acquired, and all products and proceeds thereof, pursuant to the Borrower Security Agreement; provided, such security interest shall not attach to (i) any and all Unfunded Capital Commitments funds in possession of the InvestorsBorrower constituting trust funds owned by third parties, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) capital lease obligations and property subject to a purchase money security interest to the extent relating it is subject to a Permitted Lien, which Permitted Lien prohibits the Unfunded Capital Commitments imposition of the Investors constituting Collateral in clause (i) aboveother Liens, (xiii) the Constituent Documentsoperating leases, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants licenses and other agreements (but excluding oil and gas leases) entered in the ordinary course of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description business to the extent evidencing such agreements prohibit assignment or supporting obligations under any the imposition of the foregoing Collateral and any and all security and other property with respect to such Collateral;
Liens, (iv) each Collateral Accountall permits, including but not limited authorizations, registrations, consents, approvals, waivers, exceptions, variances, claims, orders, judgments and decrees, licenses, exemptions, franchises, registrations, publications, filings, notices to and declarations of, or with, any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral Governmental Authority, including, without limitation, all construction, siting, environmental and operating permits and licenses that are required for the use and operation of the records of the Guarantor concerning Pipeline Assets, to that extent that any of the foregoing Collateral; excluding above would, by its terms or operation of law, become void, voidable, terminable or revocable if mortgaged, pledged or assigned or if a security interest therein were granted hereunder, (Av) any funds properly withdrawn from all licenses, permits, authorizations, registrations and exemptions relating to the handling, treatment, disposal and discharge of pollutants, contaminants and environmentally sensitive materials and substances which are not assignable by law or in accordance with their terms, (vi) leases, licenses and other agreements relating to computer hardware and software which are not assignable by law or in accordance with their terms, (vii) contracts, contract rights, agreements and other instruments including, without limitation, the Transportation Agreement (Marketing) and the Interconnect Agreement, which are not assignable by law or in accordance with their terms, and (viii) all other consents, licenses and permits which are not assignable by law or in accordance with their terms.
(b) Each Borrower shall grant to the Agent for the benefit of itself and the Banks and confirm its prior grant of a Collateral Account (or that could be withdrawn Lien on all of its real property, Hydrocarbons and all interests therein and proceeds thereof pursuant to the Credit Agreement if deposited or credited to a Collateral AccountDeeds of Trust.
(c) Castle shall pledge and grant to the extent usedAgent for the benefit of itself and the Banks a first priority security interest in (i) all of the outstanding capital stock of Exploration and each of the General Partners and the Limited Partners, and all products and proceeds thereof, pursuant to the terms Castle Pledge Agreement. The Agent shall retain possession in Louisiana of the Guarantor’s Governing Documentscertificates evidencing the capital stock of such Subsidiaries, together with stock powers duly executed in blank by Castle.
(d) Each of the General Partners shall pledge and grant to purchase Portfolio Investments (other than Permitted Investments deposited the Agent for the benefit of itself and the Banks a first priority security interest in or credited to any such account), to make payments or distributions to Investors its general partnership interest in accordance with the terms hereof or relevant Borrower for any other purpose permitted under which it is the Guarantor’s Governing Documents and this Credit Agreementgeneral partner, and (B) the all products and proceeds of such withdrawn funds (the items in (A) and (B)thereof, collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything pursuant to the contrary in this Credit Agreement or any other Loan Document GP Pledge Agreement.
(ie) the term “Collateral” shall not include the Unfunded Capital Commitments Each of the SOX InsidersLimited Partners shall pledge and grant to the Agent for the benefit of itself and the Banks a first priority security interest in its limited partnership interest in the relevant Borrower for which it is the limited partner, and all products and proceeds thereof, pursuant to the LP Pledge Agreement.
(f) Exploration shall pledge and grant to the Agent for the benefit of itself and the Banks a first priority security interest in Exploration's entire limited partnership interest in Deerlick Creek Field Limited Partnership and all products and proceeds thereof pursuant to the Exploration Pledge Agreement.
(g) Castle shall grant to the Agent for the benefit of itself and the Banks and confirm its prior grant of a Lien on the Mortgaged Properties owned by Castle pursuant to the Castle Mortgages and the Castle Deeds of Trust.
(h) The Borrowers, Castle, the General Partners and the Limited Partners shall execute and cause to be executed such further documents and instruments, including but not limited to without limitation, Uniform Commercial Code financing statements, as the right to draw down Investor Capital Contributions on such Unfunded Capital CommitmentsAgent, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its sole discretion, (ii) deems necessary or desirable to evidence and perfect its liens and security interests in the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 1 contract
Sources: Loan Agreement (Castle Energy Corp)
Collateral. Subject As collateral security for the payment in full when due (whether at stated maturity, by acceleration or otherwise), of its Secured Obligations, each Obligor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, Agent for the benefit of each the Secured Parties a security interest in all of such Obligor’s right, title and interest in, to and under all of the Secured Partiesfollowing property and assets, in each case whether tangible or intangible, wherever located, and whether now owned by such Obligor or hereafter acquired and whether now existing or hereafter coming into existence (all of the property described in this Section 4, other than the property excluded pursuant to the proviso to this Section 4, being collectively referred to herein as applicable“Collateral”):
(a) all Accounts, a first priorityall Chattel Paper, all Deposit Accounts, all Documents, all General Intangibles (including all Intellectual Property), all Instruments (including all Promissory Notes), all Portfolio Investments, all Pledged Debt, all Pledged Equity Interests, all Investment Property not covered by the foregoing (including all Securities, all Securities Accounts and all Security Entitlements with respect thereto and Financial Assets carried therein, and all Commodity Accounts and Commodity Contracts), all letters of credit and Letter-of-Credit Rights, all Money and all Goods (including Inventory and Equipment), and all Commercial Tort Claims;
(b) to the extent related to any Collateral, all Supporting Obligations;
(c) to the extent related to any Collateral, all books, correspondence, credit files, records, invoices and other papers (including all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Obligor or any computer bureau or service company from time to time acting for such Obligor); and
(d) all Proceeds of any of the foregoing Collateral. PROVIDED, HOWEVER, that in no event shall the security interest granted under this Section 4 attach to (and ▇▇▇▇ there shall be excluded from the definition of “Collateral”) (A) any contract, property rights, obligation, instrument or agreement to which an Obligor is a party (or to any of its rights or interests thereunder) if the grant of such security interest would constitute or result in and on its interests either (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Obligor therein, (ii) a breach or termination pursuant to the terms of, or a default under, any such contract, property rights, obligation, instrument or agreement (other than to the extent that any such terms would be rendered ineffective by Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code as in effect in the followingrelevant jurisdiction), or (iii) any assets with respect to which applicable law prohibits the creation or perfection of such security interest therein (other than to the extent that any such prohibition is rendered ineffective by Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code as in effect in the relevant jurisdiction), or (B) any Excluded Assets, and notwithstanding anything to the contrary provided in this Agreement, the term “Collateral” shall not include, and the Obligors shall not be deemed to have granted a security interest in, any Excluded Assets. Notwithstanding the foregoing, Collateral shall include the accounts listed on Annex 2.09 hereto. Each Obligor hereby authorizes the Collateral Agent to file or record financing statements and other filing or recording documents or instruments with respect to the Collateral (as defined herein) in such form and in such offices as the Collateral Agent determines, in its sole discretion, are necessary or advisable to perfect the security interests of the Collateral Agent under this Agreement. Each Obligor also authorizes the Collateral Agent to use the collateral description “all personal property of the debtor” or “all assets of the debtor,” in each case “whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments ” or words of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral similar meaning in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinfinancing statements.
Appears in 1 contract
Sources: Guarantee, Pledge and Security Agreement (TCP Capital Corp.)
Collateral. Subject to the terms of time periods set forth in Section 8.17 and the applicable Collateral Documents, to secure the payment Obligations, Hedging Liability, and performance Funds Transfer, Deposit Account Liability and Foreign LCs shall (in the case of any Hedging Liability or Funds Transfer, Deposit Account Liability and Foreign LCs, with the consent of the Obligations hereunderBorrower) be secured by valid, pursuant perfected, and enforceable Liens on and security interests in (subject to a Collateral Account PledgePermitted Liens) all right, a Security Agreementtitle, and interest of the related financing statements Borrower and the other related each Guarantor in substantially all of their respective accounts, chattel paper, instruments, documents, the Guarantor shall grantcontracts, general intangibles, letter of credit rights, supporting obligations, deposit accounts, investment property, inventory, equipment, fixtures, Intellectual Property, money, cash and shall pledge and/or assign by way of securityCash Equivalents, to the Administrative Agentcommercial tort claims, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest real estate and ▇▇▇▇ in and on its interests in the followingcertain other Property, whether now owned or hereafter acquired or arising:
, and all proceeds thereof, in each case subject to the terms and conditions of the Collateral Documents; provided, however, that: (i) any and all Unfunded Capital Commitments Liens on the Voting Stock of a Foreign Subsidiary or a Disregarded Domestic Person shall be limited to 65% of the Investors, whether now total outstanding Voting Stock (and 100% of non-Voting Stock) of any Foreign Subsidiary or hereafter committed, including but any Disregarded Domestic Person owned directly by the Borrower or one of its Domestic Subsidiaries and provided further that no stock of any Foreign Subsidiary or any Disregarded Domestic Person not limited to owned directly by the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
Borrower or one of its Domestic Subsidiaries shall be pledged hereunder; (ii) no Lien shall be granted with respect to any leasehold real property; (iii) no Liens shall be granted with respect to any fee-owned real property other than as provided for in Section 4.3 below; (iv) no Liens shall be granted with respect to any (x) Equity Interests in partnerships, joint ventures and any other Subsidiary that is not a Wholly-owned Subsidiary if such Equity Interests cannot be pledged without the consent of one or more Persons that is not a Loan Party or an Affiliate thereof, but only to the extent relating that any such prohibition is not rendered ineffective pursuant to the Unfunded Capital Commitments Section 9-406, 9-407, 9-408 or 9-409 of the Investors constituting Collateral in clause UCC (ior any successor provision or provisions thereof) above, (x) the Constituent Documentsor any other applicable law, (y) the Subscription Agreements and Side Lettersassets of a Foreign Subsidiary or a Disregarded Domestic Person, if any, of such Investors and (z) margin stock (within the meaning of Regulation U issued by the Federal Reserve Board); (v) no Lien shall be granted with respect to any Property or assets which are specifically the subject of any permit, lease, license, contract or agreement to which any Loan Party is a party or any of its rights or interests thereunder if and all guaranties only to the extent that the grant of the lien and security interest under a Collateral Document (x) is prohibited by or a violation of any law, rule or regulation applicable to such Investors’ obligations Loan Party or (y) shall constitute or result in a breach of a term or provision of, or the termination of or a default under the Constituent Documents terms of, such permit, lease, license, contract or agreement (other than to the extent that any such law, rule, regulation, term or provision would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable law (including any debtor relief law or principle of equity)); (vi) no Liens shall be granted with respect to any Property or assets the pledge of which under a Collateral Document would require governmental consent, approval, license or authorization, but only to the extent that any such restriction on such pledge is not rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions thereof) or any other applicable law (provided, however, that the Collateral shall include (and Subscription Agreements including but not limited tosuch Lien shall attach) immediately at such time as, in each case as applicable, the consent referred to above is obtained or the contractual or legal provisions referred to above shall be obtained or shall no longer be applicable and to the extent severable, and shall attach immediately to any portion of clauses (x) such Equity Interests not subject to such consent specified in preceding clause (iv), (y) such Property and assets not specifically subject to such permit, lease, license, contract or agreement specified in preceding clause (v) and (z) such Property and assets not subject to such consent, approval, license or authorization specified in clause (vi) and, provided, further, that the exclusions referred to in preceding clauses (iv), (v) and (vi) shall not include any and all representationsProceeds of any such Equity Interests, warrantiesProperty or assets); (vii) no Liens shall be granted in any “intent to use” trademark applications filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ Act, covenants and other agreements 15 U.S.C. § 1051, prior to the filing of such Investors a “Statement of Use” pursuant to Section 1(d) of the ▇▇▇▇▇▇ Act or guarantors contained therein, any and all duties and obligations an “Amendment to Allege Use” pursuant to Section 1(c) of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors ▇▇▇▇▇▇ Act with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description solely to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insidersextent, if any, unless so elected that, and solely during the period, if any, in which, a Lien therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law; (viii) no Liens shall be granted (A) with respect to any property or assets to the extent the burden or cost of obtaining such Lien therein outweighs the benefit of the security afforded thereby as reasonably determined by the Guarantor Borrower and the Administrative Agent, or (B) with respect to any other property or assets as shall be excluded from the Collateral pursuant to the Collateral Documents; and (ix) no Liens shall be granted with respect to any Property or assets to the extent that same would result in its discretionadverse tax consequences as reasonably determined by the Borrower; provided, further, that (a) no Lien shall be perfected with respect to any Property or asset with respect to which the Borrower and the Collateral Agent reasonably determine that the burden or cost of perfecting a security interest in such Property or asset outweighs the benefit of perfection afforded thereby to the Secured Creditors, (b) no foreign law governed security or pledge agreement shall be required, (c) no landlord lien waivers, bailee letters or similar agreements shall be required and (d) the security interest granted pursuant the Collateral Documents upon the following Collateral shall not be required to be perfected: (i) cash and Cash Equivalents, deposit, securities and commodities accounts (including securities entitlements and related assets), in each case to the extent a security interest therein cannot be perfected by the filing of a financing statement under the UCC; (ii) other assets the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, security interest in which requires perfection through control agreements; (iii) the term “Collateral” shall not include vehicles and any collateral posted or received in connection with the Swap Agreements, other assets subject to certificates of title; (iv) commercial tort claims; and (v) letter of credit rights, in each case, to the extent a security interest therein cannot be perfected by the filing of a financing statement under the UCC. The Borrower acknowledges and agrees that the Liens on the Collateral may shall be subject granted to the Administrative Agent for the benefit of the holders of the Obligations, the Hedging Liability, and the Funds Transfer, Deposit Account Liability and Foreign LCs and shall be valid and perfected first priority Liens subject, however, to the proviso appearing at the end of the preceding sentence and to Permitted Liens, (v) a Borrower in each case pursuant to one or the Guarantor may maintain other bank accounts or securities accounts more Collateral Documents entered into by such Persons, each in addition form and substance reasonably satisfactory to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinAgent.
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Collateral. Subject As collateral security for the payment in full when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations, the Borrower hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, Agent for the benefit of each the Secured Parties as hereinafter provided a security interest in all of the Secured PartiesBorrower’s right, as applicabletitle and interest in, a first priority, security interest to and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited tofollowing property, in each case whether tangible or intangible, wherever located, and whether now owned by the Borrower or hereafter acquired and whether now existing or hereafter coming into existence excluding, in all instances and for the avoidance of clauses doubt, the Santander Excluded Assets (all of the property described in this Section 3 being collectively referred to herein as “Collateral”):
(a) the Pledged Shares;
(b) all securities, moneys or property representing a dividend on any of the Pledged Shares or representing a distribution or return of capital upon or in respect of the Pledged Shares, or resulting from a split-up, revision, reclassification or other like change of the Pledged Shares or otherwise received in exchange therefor, and any subscription warrants, rights or options issued to the holders of, or otherwise in respect of, the Pledged Shares;
(c) all cash dividends or cash distributions in respect of any of the Seller Excluded Shares (other than (x)) distributions resulting from a capital reduction or from a stock split, reclassification or stock dividend and (y) in-kind dividends or distributions, provided that, without prejudice to the proviso to Section 5.1 of the Intercreditor Agreement and upon the execution of the Junior Pledge Agreement, as defined in (z)and in the form required on the date hereof by) the Subordinated Seller Loan Agreement, and the Borrower Pledge Agreement, the property described in this clause (c) shall, automatically and without any and all representationsaction on the part of any Person, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights cease to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretobe covered by this Agreement;
(iiid) any all General Intangibles;
(e) all Accounts; all As-Extracted Collateral; all Chattel Paper; all Deposit Accounts; all Documents; all Equipment; all Fixtures; all Goods not otherwise covered in this Section 3; all Instruments, including all Promissory Notes; all Intellectual Property; all Inventory; all Investment Property not otherwise covered in this Section 3, including all Securities, all Securities Accounts and all agreementsSecurity Entitlements with respect thereto and Financial Assets carried therein, instruments and other documents all Commodity Accounts and Commodity Contracts; all Letter-of-Credit Rights; all commercial tort claims, as defined in Section 9-102(a)(13) of every kind or description the NYUCC, to the extent evidencing or supporting obligations under any specified and arising out of the foregoing Collateral and any and all security and other property with respect to such Collateralevents described in Annex 3;
(ivf) each Collateral Accountall other tangible and intangible personal property whatsoever of the Borrower, including but not limited to any other than Seller Excluded Shares and all funds and financial assets on deposit therein or credited theretothe Santander Excluded Assets; and
(vg) any and all proceeds Proceeds of any of the foregoing Collateral including, without limitationCollateral, all of the records of the Guarantor concerning Accessions to and substitutions and replacements for, any of the foregoing Collateral; excluding (A) , and all offspring, rents, profits and products of any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to of the Credit Agreement if deposited or credited to a Collateral Account) Collateral, and, to the extent usedrelated to any Collateral, pursuant to all books, correspondence, credit files, records, invoices and other papers (including all tapes, cards, computer runs and other papers and documents in the terms possession or under the control of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement Borrower or any other Loan Document (i) computer bureau or service company from time to time acting for the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinBorrower).
Appears in 1 contract
Sources: Security Agreement (Petersen Energia Inversora, S.A.)
Collateral. Subject to As collateral security for the terms prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the applicable Collateral DocumentsSecured Obligations, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of (i) each of the Seller and SpaceCom hereby pledges, assigns, charges, hypothecates and transfers to the Secured PartiesParty, as applicableand grants to, and charges in favor of, the Secured Party a first prioritycharge, lien on and security interest in, all of Seller's and ▇▇▇▇ in SpaceCom's right, title and on its interests interest in the followingEDS Satellite wherever located, and whether on earth or in orbit, and (ii) each Obligor hereby pledges, assigns, charges, hypothecates and transfers to the Secured Party, and grants to, and charges in favor of, the Secured Party a charge, lien on and security interest in, all of such Obligor's right, title and interest in the following additional property, whether now owned by such Obligor or hereafter acquired and whether now existing or arisinghereafter coming into existence (such property, together with the EDS Satellite, all being collectively referred to herein as "Collateral"):
(a) all shares of capital stock, share capital or other evidence of beneficial interest of whatever class of each corporation or company identified in Annex 2 in each case together with the certificates evidencing the same if such shares are in certificated form (collectively, the "Pledged Stock");
(b) all shares, interests, securities, moneys or other property representing a dividend on any of the Pledged Stock, or representing a distribution or return of capital upon or in respect of the Pledged Stock, or resulting from a split-up, revision, consolidation, reclassification or other like change of the Pledged Stock or otherwise received in exchange therefor, and all options, warrants and similar rights issued to the holders of, or otherwise in respect of, the Pledged Stock;
(c) without affecting the obligations of such Obligor under any provision prohibiting such action hereunder, in the event of any consolidation, amalgamation or merger of a subsidiary identified in Annex 2 in which such subsidiary is not the surviving entity, all ownership interests of whatever class owned by such Obligor of the successor entity formed by or resulting from such consolidation, amalgamation or merger (the Pledged Stock, together with all shares, interests, securities, moneys or property as may from time to time be pledged or charged hereunder pursuant to clause (a) or (b) above and this clause (c) being herein, and the proceeds of and to any such property and, to the extent related to any such property or such proceeds, all books, correspondence, credit files, records, invoices and other papers, collectively called the "Pledged Collateral");
(d) the following contracts and agreements to which such Obligor is a party:
(i) the Boeing Contract;
(ii) the Satellite Agreements; and
(iii) all other agreements providing for sale of EDS Satellite capacity; (said contracts, agreements and obligations, as so amended, supplemented renewed or modified, including any such replacement or substitution contracts, agreements and obligations, being, individually, an "Assigned Agreement", and, collectively, the "Assigned Agreements"), including, without limitation, (1) all rights of such Obligor to receive moneys due and to become due under or pursuant to the Assigned Agreements, (2) all rights to receive property, assets, services or other performance thereunder, (3) all rights of such Obligor under the Assigned Agreements to which it is a party to receive return of any premiums for or proceeds of any insurance, payment and/or performance bond, indemnity, warranty or guaranty or to receive condemnation proceeds thereof, (4) all claims of such Obligor for damages arising out of or for breach of or default under the Assigned Agreements and (5) all rights of such Obligor to terminate, amend, supplement, modify or waive performance under the Assigned Agreements, to perform thereunder and to compel performance and otherwise to exercise all remedies thereunder, in each case as such contract, agreement and obligation may be amended, supplemented, renewed or otherwise modified, including, without limitation, any agreement, contract or document replacing or substituting for such contract, agreement or obligation from time to time;
(e) subject to the final paragraph of this Article III, all accounts and general intangibles (each as defined in the Uniform Commercial Code, but excluding all intellectual property of every type (including patents, trademarks and copyrights) other than Intellectual Property) constituting any right of such Obligor to the payment of money under or in respect of the Assigned Agreements, whether at law or in equity (whether or not earned by performance and whether arising directly or indirectly and including claims for reimbursement, contribution, indemnity and subrogation) (such accounts and general intangibles being herein called collectively "Accounts");
(f) all instruments, chattel paper or letters of credit (each as defined in the Uniform Commercial Code) of such Obligor evidencing, representing, arising from or existing in respect of, relating to, securing or otherwise supporting the payment of, any of the Accounts, including (but not limited to) promissory notes, drafts, bills of exchange and trade acceptances (herein collectively called "Instruments");
(g) all spare parts inventory, consumable supplies inventory and maintenance materials inventory and raw materials and work in progress therefor, finished goods thereof, and materials used or consumed in the manufacture or production thereof relating to the EDS Satellite and delivered to Skynet pursuant to the EDS Contract (herein collectively called "Inventory");
(h) all rights, claims and benefits of such Obligor in, and against any Person arising out of, relating to or in connection with, the EDS Satellite purchased by such Obligor, including, without limitation, any such rights, claims or benefits against any Person storing or transporting the EDS Satellite but excluding any rights, title, claims and benefits under any insurance policies, whether owned by or payable to such Obligor, other than the Insurance Policies (as hereinafter defined);
(i) all documents of title (as defined in the Uniform Commercial Code) or other receipts of such Obligor covering, evidencing or representing the EDS Satellite or Inventory (herein collectively called "Documents");
(j) all copyrights, copyright registrations and applications for copyright registrations, including, without limitation, all renewals and extensions thereof, the right to recover for all past, present and future infringements thereof, and all Unfunded Capital Commitments other rights of any kind whatsoever accruing thereunder or pertaining thereto, in each case, only to the extent that such copyrights, copyright registrations, applications for copyright registrations and other rights are actually included in the sale of the InvestorsEDS Satellite pursuant to the EDS Contract and then only to the extent so included in the EDS Contract (herein collectively called "Copyrights");
(k) all patents and patent applications, whether including, without limitation, the inventions and improvements described and claimed therein together with the reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof, all income, royalties, damages and payments now or hereafter committeddue and/or payable under and with respect thereto, including but not limited to including, without limitation, damages and payments for all past, present and future infringements thereof, the right to draw down Investor Capital Contributions sue for past, present and future infringements thereof, and al▇ ▇ights corresponding thereto throughout the world, in each case, only to the extent that such patents, patent applications and the rights to such income, royalties, damages and payments and other rights are actually included in the sale of the EDS Satellite pursuant to the EDS Contract and then only to the extent so included in the EDS Contract (herein collectively called "Patents");
(1) all trade names, trademarks and service marks, logos, trademark and service mark registrations, and applications for trademark and service ▇▇▇k registrations (including, without limitation, all renewals of trademark and service mark registrations, and all rights corresponding thereto throu▇▇▇▇t the world relating to the ownership, operation, exploitation or use, but excluding any such registration that would be rendered invalid, abandoned, void or unenforceable by reason of its being included as part of the Collateral), the right to recover for all past, present and future infringements thereof, all other rights of any kind whatsoever accruing thereunder or pertaining thereto, in each case, only to the extent that such trade names, trademarks, service marks, logos, registrations, applications and other rights are actually included in the sale of the EDS Satellite pursuant to the EDS Contract and then only to the extent so included in the EDS Contract (herein collectively called "Trademarks");
(m) all information, identification of suppliers, data, plans, blueprints, designs, models, recorded knowledge, surveys, architectural, structural, mechanical and engineering plans and specifications, studies, reports and drawings, test reports, manuals, material standards, processing standards, performance standards, catalogs, computer and automatic machinery software and programs, all accounting information and all media in which or on which any information or knowledge or data or records may be recorded or stored and all computer programs used for the compilation or printout of such Unfunded Capital Commitments from information, knowledge, records or data, prepared by or on behalf of such Investors Obligor for the operation of the EDS Satellite, in each case, only to the extent that such items are actually included in the sale of the EDS Satellite pursuant to the EDS Contract and then only to issue Investor Capital Calls the extent so included in the EDS Contract;
(n) the Insurance Policies, whether owned by or payable to such Obligor, all loss proceeds and other amounts payable to such Obligor thereunder, any indemnity, warranty or guaranty in respect of the property insured thereby, and all eminent domain or similar proceeds or awards with respect thereto and all other rights of such Obligor with respect thereto;
(iio) all books, correspondence, credit files, records, invoices, ledgers and other papers of every kind and nature, including without limitation all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Obligor or any computer bureau or service company from time to time acting for such Obligor relating to the ownership, lease, sale, construction, use, operation or exploitation of the EDS Satellite necessary for the operation of the EDS Satellite, provided that, solely with respect to the Seller, SpaceCom and Loral Ltd., the items set forth in this clause (o) shall be limited to include only such items as are actually included in the sale of the EDS Satellite pursuant to the EDS Contract and then only to the extent relating to so included in the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretoEDS Contract; and
(vp) any all proceeds, products, offspring, rents, profits, royalties, revenues, issues, income, benefits, accessions, additions, substitutions and all proceeds replacements of and to any of the foregoing property of such Obligor constituting Collateral under the preceding clauses of this Section (including, without limitation, all causes of the records action, claims and warranties now or hereafter held by any Obligor in respect of the Guarantor concerning any of the foregoing Collateral; excluding Collateral listed above). Notwithstanding the foregoing, (Ai) the Collateral does not include (1) any funds properly withdrawn from account (as defined in the Uniform Commercial Code), contract or general intangible (as defined in the Uniform Commercial Code) which contains, after taking into account Sections 9-406 through 9-408 of the applicable Uniform Commercial Code or other applicable law, a Collateral Account (valid and enforceable prohibition on the creation, perfection or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to enforcement of a Collateral Account) security interest, but only to the extent usedand for the duration of such prohibition, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments or (other than Permitted Investments deposited in or credited 2) with respect to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted property pledged by an Obligor organized under the Guarantor’s Governing Documents and this Credit laws of Brazil, any equipment required to be excluded for SkynetBrazil to comply with its obligation under Brazilian laws, regulations and/or the ANATEL Concession Agreement, and (Bii) nothing herein shall create an obligation on the proceeds part of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing any Obligor to pay or anything transfer to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital CommitmentsSecured Party, or any other interests of a restriction on the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio InvestmentObligors' use of, any Portfolio Assets or any Excluded Proceedscash Collateral (other than cash proceeds from the Insurance Policies, (iiiwhich shall be governed by Section 4.04(e)) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap of this Agreement, as provided thereinother than during a period during which a Security Event of Default has occurred and is continuing.
Appears in 1 contract
Sources: Pledge and Security Agreement (Loral Space & Communications LTD)
Collateral. Subject The parties hereto intend that this Agreement constitute a security agreement and the transactions effected hereby constitute secured loans by the Lenders to the terms of Borrower under Applicable Law. As collateral security for the applicable Collateral Documentsprompt, to secure the complete and indefeasible payment and performance in full when due, whether by lapse of time, acceleration or otherwise, of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, Borrower hereby grants to the Administrative Agent, as agent for the benefit of each of the Secured Parties, as applicable, a first priority, lien on and security interest in all of the Borrower's right, title and ▇▇▇▇ in interest in, to and on its interests in under the following, whether now existing or owned or hereafter arising or acquired or arising:
by the Borrower (collectively, the "Collateral"): (i) any the Receivables and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, related Contracts (including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors service the Receivables in connection therewith) and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveany accounts or obligations evidenced thereby, (x) the Constituent Documentsany guarantee thereof, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any all Collections and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements monies due (including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations payments made under any of the foregoing Collateral and any and all security and other property guarantee or similar credit enhancement with respect to any such Collateral;
(ivReceivables) each Collateral Account, including but not limited or to become due or received by any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds Person in payment of any of the foregoing Collateral including, without limitation, all of on or after the records of the Guarantor concerning any of the foregoing Collateralrelated Cutoff Date; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include Financed Vehicles related to such Receivables (including Financed Vehicles that have been repossessed) or in any Portfolio Investmentdocument or writing evidencing any security interest in any Financed Vehicle and each security interest in each Financed Vehicle securing each such Receivable, including all proceeds from any Portfolio Assets sale or any Excluded Proceeds, other disposition of such Financed Vehicles; (iii) the term “Account Collateral” shall not include ; (iv) the Borrower's rights to Collections on deposit in the Lockbox Account; (v) subject to the Control Agreement, the Borrower's rights to the Collection Account and the Hedge Reserve Account; (vi) all Hedge Collateral; (vii) all Receivable Files, the Schedule of Receivables, and all documents, agreements and instruments included in the Receivable Files, including rights of recourse of the Borrower against DFC and/or any collateral posted Dealer with respect to the Receivables; DB1/ 139452285.4144571789.3 71 (viii) all Records, documents and writings evidencing or received related to the Receivables or the Contracts; (ix) all rights to payment under all Insurance Policies with respect to a Financed Vehicle, including any monies collected from whatever source in connection with any default of an Obligor with respect to a Financed Vehicle and any proceeds from claims or refunds of premiums on any Insurance Policy; (x) all guaranties, indemnities, warranties, insurance (and proceeds and premium refunds thereof) and other agreements or arrangements of whatever character from time to time supporting or securing payment of the Receivables, whether pursuant to the related Contracts or otherwise; (xi) all rights to payment under all service contracts and other contracts and agreements associated with the Receivables; (xii) all security interests, Liens, guaranties and other encumbrances in favor of or assigned or transferred to the Borrower in and to the Receivables and Financed Vehicles; (xiii) all deposit accounts, monies, deposits, funds, accounts and instruments relating to the foregoing (subject to the Control Agreement); (xiv) the Purchase Agreement (including each Purchase Agreement Supplement) and remedies thereunder and the assignment to the Administrative Agent of all UCC financing statements filed by the Borrower against DFC under or in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions Purchase Agreement; and (vixv) all income and proceeds of the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 1 contract
Sources: Loan Agreement (Lithia Motors Inc)
Collateral. Subject (i) Without the consent of any other person, but subject to the terms of the any applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Intercreditor Agreement, the related financing statements applicable Credit Party or Parties and the other related documentsAdministrative Agent and/or Collateral Agent may (in its or their respective sole discretion), the Guarantor shall grant, and shall pledge and/or assign by way of securityor shall, to the Administrative Agentextent required by any Loan Document enter into any amendment or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion (including to cover additional amounts as secured obligations thereunder) or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of each of the Secured Parties, or as applicablerequired by local law to give effect to, a first priorityor protect, any security interest and ▇▇▇▇ in and on its interests in for the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments benefit of the Investors, whether now Secured Parties in any property or hereafter committed, including but not limited to so that the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls security interests therein comply with respect thereto;applicable Requirements of Law.
(ii) Notwithstanding anything in this Agreement or any Security Document to the extent relating to contrary, the Unfunded Capital Commitments Administrative Agent and/or, as applicable, the Collateral Agent may, in its sole discretion, grant extensions of time for the satisfaction of any of the Investors constituting requirements under Sections 5.10 and 5.11 or of any Security Document in respect of any particular Collateral in clause (i) above, (x) or any particular Subsidiary if it determines that the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions satisfaction thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;to such Collateral or such Subsidiary cannot be accomplished without undue expense or unreasonable effort or due to factors beyond the control of Holdings, the Borrowers and the Restricted Subsidiaries by the time or times at which any such requirement would otherwise be required to be satisfied under this Agreement or any Security Document.
(iii) The Lenders hereby irrevocably agree that the Liens granted to the Collateral Agent by the Credit Parties on any Collateral shall be automatically released (i) in full, upon the termination of this Agreement and the payment in full of all agreementsSecured Obligations (other than (A) contingent indemnification obligations and unasserted expense reimbursement obligations, instruments (B) obligations and liabilities under Secured Cash Management Agreements and Secured Hedging Agreements as to which arrangements satisfactory to the applicable Cash Management Bank or Hedge Bank shall have been made, and (C) Letters of Credit that have been cash collateralized in accordance with this Agreement or backstopped to the reasonable satisfaction of the applicable Issuing Bank), (ii) upon the sale or other documents disposition of every kind such Collateral (including as part of or description in connection with any other sale or other disposition permitted hereunder) to any Person other than another Credit Party, to the extent evidencing such sale or supporting obligations under other disposition is made in compliance with the terms of this Agreement (and the Collateral Agent may rely conclusively on a certificate to that effect provided by any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
Credit Party upon its reasonable request without further inquiry), (iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Accountiii) to the extent usedsuch Collateral is comprised of property leased to a Credit Party, pursuant upon termination or expiration of such lease, (iv) if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or such other percentage of the Lenders whose consent may be required in accordance with this Section 10.02), (v) to the terms extent the property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor from its obligations under the Guarantor’s Governing Documents, to purchase Portfolio Investments applicable Guarantee (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof second following sentence), (vi) as required to effect any sale or for other disposition of Collateral in connection with any exercise of remedies of the Collateral Agent pursuant to the Security Documents, or (vii) if such assets constitute Excluded Property. Any such release shall not in any manner discharge, affect or impair the Obligations or any Liens (other purpose permitted under than those being released) upon (or obligations (other than those being released) of the Guarantor’s Governing Documents and this Credit AgreementParties in respect of) all interests retained by the Credit Parties, and (B) including the proceeds of such withdrawn funds (any sale, all of which shall continue to constitute part of the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything Collateral except to the contrary extent otherwise released in this Credit Agreement or any other Loan Document (i) accordance with the term “Collateral” shall not include the Unfunded Capital Commitments provisions of the SOX InsidersCredit Documents. Additionally, including but the Lenders hereby irrevocably agree that any Restricted Subsidiary that is a Guarantor shall be released from the Guarantees upon consummation of any transaction not limited prohibited by this Agreement resulting in such Subsidiary ceasing to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, constitute a Restricted Subsidiary or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any upon becoming an Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) Subsidiary. The Lenders hereby authorize the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap AgreementCollateral Agent, as provided thereinapplicable, to, and the Administrative Agent and the Collateral Agent agree to, execute and deliver any instruments, documents and agreements necessary or desirable or reasonably requested by the Borrowers to evidence and confirm the release of any Guarantor or Collateral pursuant to the foregoing provisions of this paragraph, all without the further consent or joinder of any Lender and without any representation or warranty of any such Agent or Lender.
Appears in 1 contract
Collateral. Subject The COLLATERAL of this Security Agreement is as follows, wherever located, whether DEBTOR now has or hereafter acquires any rights therein, and all proceeds thereof (hereinafter sometimes collectively referred to as the terms "COLLATERAL"): All of the applicable Collateral Documents, to secure the payment assets and performance proceeds of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements DEBTOR including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;:
(iiia) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral DEBTOR'S and any its subsidiaries now existing and all security future: (a) accounts (as defined in the Uniform Commercial Code as in effect in the State of New York and other property with respect as the same may be amended from time to such Collateral;
time, hereafter, the "UCC") (ivwhether or not specifically listed on schedules furnished to SECURED PARTY) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all accounts created by or arising from all of the records DEBTOR'S sales of INVENTORY (as hereinafter defined) and all rights to payment under and with respect to (i) promissory notes and (ii) bank or non-bank credit cards, and all accounts arising from sales made under any of the Guarantor concerning DEBTOR'S trade names or styles, or through any of the DEBTOR'S subsidiaries, (b) unpaid seller's or lessor's rights (including rescission, replevin, reclamation and stoppage in transit) relating to the foregoing or arising therefrom; (c) rights to any INVENTORY represented by any of the foregoing, including rights to returned or repossessed goods; (d) reserves and credit balances arising in the account owned by PARAGON and under the LOAN AND SECURITY AGREEMENT; (e) guarantees or collateral for any of the foregoing; (f) insurance policies or rights relating to any of the foregoing; and (g) cash and non-cash proceeds of any and all the foregoing;
(b) all present and future documents (as defined in the UCC) and any and all warehouse receipts, bills of lading, shipping documents, chattel paper, instruments and similar documents, all whether negotiable or not and all goods and INVENTORY relating thereto and all cash and non-cash proceeds of the foregoing;
(c) all DEBTOR'S and its subsidiaries present and future general intangibles (as defined in the UCC, hereafter, "GENERAL INTANGIBLES"), including, without limitation, all present and future right, title and interest in and to all tradenames, trademarks (together with the goodwill associated therewith), copyrights, patents, licenses, customer lists, distribution agreements, supply agreements and tax refunds, together with all monies and claims for monies now or hereafter due and payable in connection with any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreementotherwise, and (B) all cash and non-cash proceeds thereof, including, without limitation, the proceeds of such withdrawn funds (any licensing agreements between the items in (A) DEBTOR and (B)any licensee of any of the DEBTOR'S GENERAL INTANGIBLES provided, collectively “Excluded Proceeds”). Notwithstanding however, that if any of the foregoing or anything GENERAL INTANGIBLES existing on the date hereof other than tax refunds are prohibited by contract from being assigned to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” SECURED PARTY, SECURED PARTY agrees that it shall not include require that the Unfunded Capital Commitments DEBTOR grant SECURED PARTY a lien on such GENERAL INTANGIBLES until the earlier of the SOX Insiderstermination of such contract or deletion of such prohibition, including but not limited except that any and all monies due or to the right to draw down Investor Capital Contributions on become due under such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” GENERAL INTANGIBLES shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted LiensSECURED PARTY'S lien hereunder;
(d) all of the DEBTOR'S and its subsidiaries present and hereafter acquired inventory (as defined in the UCC) and any and all merchandise and goods, and all additions, substitutions and replacements thereof, wherever located, together with all goods and materials, wherever located, used or usable in manufacturing, processing, packaging or shipping same and in all stages of production and all cash and non-cash proceeds thereof of whatever sort (vcollectively, "INVENTORY"); and
(e) a Borrower or the Guarantor may maintain other bank all now owned and hereafter acquired deposit accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection maintained with any Swap Agreementbank or financial institutions; all cash and other monies and property in the possession or control of PARAGON; all books, as provided thereinrecords, ledger cards, disks and related data processing software at any time evidencing or containing information relating to any of the COLLATERAL described herein or otherwise necessary or helpful in the collection thereof or realization thereon, and all cash and non-cash proceeds of the foregoing.
Appears in 1 contract
Collateral. Subject The parties hereto intend that this Agreement constitute a security agreement and the transactions effected hereby constitute secured loans by the Lenders to the terms of Borrower under Applicable Law. As collateral security for the applicable Collateral Documentsprompt, to secure the complete and indefeasible payment and performance in full when due, whether by lapse of time, acceleration or otherwise, of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, Borrower hereby grants to the Administrative Agent, as agent for the benefit of each of the Secured Parties, as applicable, a first priority, lien on and security interest in all of the Borrower's right, title and ▇▇▇▇ in interest in, to and on its interests in under the following, whether now existing or owned or hereafter arising or acquired or arising:
by the Borrower (collectively, the "Collateral"): (i) any the Receivables and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, related Contracts (including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors service the Receivables in connection therewith) and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveany accounts or obligations evidenced thereby, (x) the Constituent Documentsany guarantee thereof, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any all Collections and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements monies due (including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations payments made under any of the foregoing Collateral and any and all security and other property guarantee or similar credit enhancement with respect to any such Collateral;
(ivReceivables) each Collateral Account, including but not limited or to become due or received by any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds Person in payment of any of the foregoing Collateral including, without limitation, all of on or after the records of the Guarantor concerning any of the foregoing Collateralrelated Cutoff Date; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include Financed Vehicles related to such Receivables (including Financed Vehicles that have been repossessed) or in any Portfolio Investmentdocument or writing evidencing any security interest in any Financed Vehicle and each security interest in each Financed Vehicle securing each such Receivable, including all proceeds from any Portfolio Assets sale or any Excluded Proceeds, other disposition of such Financed Vehicles; (iii) the term “Account Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, ; (iv) the Collateral may be subject Borrower's rights to Permitted Liens, Collections on deposit in the Lockbox Account; (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition subject to the Collateral Accounts that will not be considered “Collateral” Control Agreement, the Borrower's rights to the Collection Account and such other accounts shall not be subject to control agreements or other restrictions and the Hedge Reserve Account; (vi) all Hedge Collateral; (vii) all Receivable Files, the Administrative Agent Schedule of Receivables, and all documents, agreements and instruments included in the Secured Parties shall not have any Lien on any property that is not “Collateral”Receivable Files, except in connection with any Swap Agreement, as provided therein.including 75
Appears in 1 contract
Sources: Loan Agreement (Lithia Motors Inc)
Collateral. Subject For the purposes of this Agreement, all of the following property now owned or at any time hereafter acquired by a Grantor or in which a Grantor now has or at any time in the future may acquire any right, title or interest is collectively referred to as the “Collateral”: (a) all accounts, chattel paper, cash, deposit accounts, securities accounts, commodities accounts, documents, equipment, general intangibles, instruments, inventory, investment property, letter-of-credit rights and any supporting obligations related to any of the foregoing; (b) the commercial tort claims for which a claim has been filed in a court of competent jurisdiction the value of which would reasonably be expected to exceed $1,000,000 described on Schedule 1 and on any supplement thereto received by the Collateral Agent pursuant to Section 4.6; (c) all books and records pertaining to the terms other property described in this Section 2.1; (d) all property of such Grantor held by any Secured Party, including all property of every description, in the applicable Collateral Documentscustody of or in transit to such Secured Party for any purpose, to secure the payment and performance of the Obligations hereunderincluding safekeeping, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agentcollection or pledge, for the benefit account of each of the Secured Parties, such Grantor or as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned to which such Grantor may have any right or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committedpower, including but not limited to cash; (e) all other goods(including but not limited to fixtures) and personal property ofsuch Grantor, whether tangible or intangible and wherever located; (f) all Intellectual Property; (g) all Pledged Securities; (h) all Pledged Equity Interests, in each case including all dividends, distributions, return of capital, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors Pledged Equity Interests and to issue Investor Capital Calls all warrants, rights or options issued thereon or with respect thereto;
; (iii) all Pledged Debt Instruments, in each case including all interest, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all Pledged Debt Instruments; provided that the Pledged Debt Instruments shall not include, and no Lien shall attach to, and no representation, warranty or covenant contained herein shall apply to, any Excluded Property; (j) all payments of principal or interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of, in exchange for or upon the conversion of, and all other Proceeds received in respect of, the securities referred to in clauses (h) and (i) above; and (k) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) abovenot otherwise included, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateralforegoing; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.5
Appears in 1 contract
Collateral. Subject to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Borrower Security Agreement, the related financing statements and the other related documents, the Guarantor Primary Borrower shall grant, and shall pledge and/or and assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ Lien in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor Primary Borrower (as the case may be) concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments used (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or ) for any other a purpose permitted under the Guarantor’s Governing Documents LLC Agreement and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor Primary Borrower in its discretion, (ii) the term “Collateral” shall not include any Portfolio Fund Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, ” except in connection with any Swap Agreement, as provided therein.
Appears in 1 contract
Sources: Revolving Credit Agreement (Goldman Sachs Private Middle Market Credit LLC)
Collateral. Subject (a) Each of the Guarantors hereby assigns and transfers to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantAgent, and shall pledge and/or assign by way of security, hereby grants to the Administrative Collateral Agent, for the ratable benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in in, all of the following, whether following property now owned or at any time hereafter acquired by such Guarantor or arisingin which such Guarantor now has or at any time in the future may acquire any right, title or interest (collectively, the "Collateral Pool"), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the Guarantor Obligations:
(i) Telstar 6, Telstar 7 and any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoReplacement Satellite;
(ii) to the extent relating to Availability Agreement, the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any TT&C Agreement and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights entered into pursuant to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoSection 11(b);
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of permitted by applicable law, the foregoing Collateral and any and all security and other property with respect to such CollateralFCC Licenses;
(iv) each Collateral Account, including but not limited all transponder lease agreements to any and all funds and financial assets on deposit therein or credited thereto; and
which such Guarantor is a party (v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of Master Lease Agreements);
(v) the records of Intercompany Notes;
(vi) the Guarantor concerning any of SatCom Collateral Account, the foregoing Collateral; excluding (A) any funds properly withdrawn from a Loral Satellite Collateral Account (or that could be withdrawn and any other collateral account established pursuant to the Credit Agreement if deposited or credited Collateral Agency Agreement;
(vii) the Transponder Transfer Agreements;
(viii) all Accounts, General Intangibles (including construction and purchase contracts) and Equipment, in each case solely to a the extent relating to any other item in the Collateral AccountPool;
(ix) all books and records pertaining to the Collateral Pool;
(x) the Equity Interests of any Subsidiary of such Guarantor; and
(xi) to the extent usednot otherwise included, pursuant to the terms all Proceeds and products of any and all of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited foregoing and all collateral security and guarantees given by any Person with respect to any such account)of the foregoing.
(b) So long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Guarantors shall be permitted to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions remove any Satellite or transponder on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) Satellite from the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition Pool upon delivery to the Collateral Accounts that will not Agent of Acceptable Collateral, together with such appraisals thereof as may be considered “Collateral” required by and such other accounts shall not be subject satisfactory to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties Majority Lenders, and (ii) remove any Satellite or transponder on any Satellite from the Collateral Pool, in each case, provided that no such removal shall not be permitted (A) if, after giving effect thereto, the Collateral Coverage Ratio, as computed after giving effect to such removal or substitution, would be less than 1.20 to 1.00 and (B) unless the Acceptable Collateral (if any) is then subject to a fully perfected security interest in favor of the Collateral Agent pursuant to this Guarantee, and provided further that (x) no more than 25% of the transponders on any Satellite may be removed (except in connection with the removal of a Satellite) from the Collateral Pool pursuant to clause (ii) above and (y) for purposes of determining compliance with clause (A) above and Section 11(a), the Appraised Value of any Satellite shall be immediately reduced by the proceeds received from any such sale of any transponders on such Satellite.
(c) So long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Guarantors shall be permitted to make cash withdrawals from the SatCom Collateral Account, the Loral Satellite Collateral Account or any other collateral account maintained by the Guarantors in connection with the Guarantee.
(d) The Collateral Agent shall release the Collateral on the Release Date. Any Lien on any property that which is not “Collateral”, except removed from the Collateral Pool in connection accordance with any Swap Agreement, as provided thereinSection 3(b) shall automatically be released upon such removal.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Loral Space & Communications LTD)
Collateral. Subject to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any respective agents and counsel and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and amounts due the Secured Parties shall not have any Lien on any property that is not “Collateral”, except hereunder) allowed in connection with any Swap Agreement, as provided therein.such judicial proceeding; and
Appears in 1 contract
Collateral. Subject As collateral security for the payment in full when due (whether at stated maturity, by acceleration or otherwise) of its Secured Obligations, each Obligor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, Agent for the benefit of each the Secured Parties as hereinafter provided a security interest in all of such Obligor’s right, title and interest in, to and under all of the Secured Partiesfollowing property and assets, as applicablein each case whether tangible or intangible, a first prioritywherever located, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned by such Obligor or hereafter acquired and whether now existing or arising:hereafter coming into existence (all of the property described in this Section 4 being collectively referred to herein as “Collateral”):
(ia) any all Accounts, all Chattel Paper, all Deposit Accounts, all Documents, all General Intangibles (including all Intellectual Property), all Instruments (including all Promissory Notes), all Portfolio Investments, all Pledged Debt, all Pledged Equity Interests, all Investment Property not covered by the foregoing (including all Securities, all Securities Accounts and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls Security Entitlements with respect theretothereto and Financial Assets carried therein, and all Commodity Accounts and Commodity Contracts), all letters of credit and Letter-of-Credit Rights, all Money and all Goods (including Inventory and Equipment), and all Commercial Tort Claims;
(iib) to the extent relating related to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveany Collateral, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoSupporting Obligations;
(iiic) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under related to any of the foregoing Collateral and any and Collateral, all security books, correspondence, credit files, records, invoices and other property with respect papers (including all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Obligor or any computer bureau or service company from time to time acting for such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretoObligor); and
(vd) any and all proceeds Proceeds of any of the foregoing Collateral includingCollateral. IT BEING UNDERSTOOD, without limitationHOWEVER, all of that in no event shall the records of the Guarantor concerning any of the foregoing Collateral; excluding security interest granted under this Section 4 attach to (A) any funds properly withdrawn from contract, property rights, obligation, instrument or agreement to which an Obligor is a Collateral Account party (or that could be withdrawn pursuant to any of its rights or interests thereunder) if the Credit Agreement if deposited grant of such security interest would constitute or credited to result in either (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Obligor therein or (ii) a Collateral Account) to the extent used, breach or termination pursuant to the terms of the Guarantor’s Governing Documentsof, to purchase Portfolio Investments or a default under, any such contract, property rights, obligation, instrument or agreement (other than Permitted Investments deposited in or credited to the extent that any such accountterms would be rendered ineffective by Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code as in effect in the relevant jurisdiction), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) any Excluded Assets, and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or notwithstanding anything to the contrary provided in this Credit Agreement or any other Loan Document (i) Agreement, the term “Collateral” shall not include include, and the Unfunded Capital Commitments of the SOX InsidersObligors shall not be deemed to have granted a security interest in, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, Excluded Assets and (ii2) the term “Collateral” shall not include any Portfolio InvestmentObligors, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition by notice to the Collateral Accounts Agent, exclude from the grant of a security interest provided above in this Section 4, any Special Equity Interests designated by the Borrower in reasonable detail to the Collateral Agent in such notice (it being understood that will not be considered “Collateral” and the Borrower may at any later time rescind any such other accounts shall not be subject designation by similar notice to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinCollateral Agent).
Appears in 1 contract
Sources: Guarantee, Pledge and Security Agreement (Sierra Income Corp)
Collateral. Subject to 4.1 Without limiting the terms prior grant of the applicable Collateral Documentscontinuing security interest in, lien upon, and right of set off against, and assignment by Borrower to Agent, for itself and the ratable benefit of Lenders, to secure the payment and performance of the Obligations hereunderall Obligations, pursuant to Borrower hereby grants (and confirms its prior grant of) a Collateral Account Pledgecontinuing security interest in, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantlien upon, and shall pledge and/or assign by way a right of securityset off against, and hereby assigns (and confirms its prior assignment) to the Administrative Agent, for itself and the ratable benefit of each of the Secured PartiesLenders, as applicablesecurity, a first priority, security interest and ▇▇▇▇ in and on its interests in the followingall personal property of Borrower, whether now owned or hereafter acquired or arising:existing, and wherever located (together with all other collateral security for the Obligations at any time granted to or held or acquired by Agent or any Lender, collectively, the "Collateral"):
(ia) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoAccounts;
(iib) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveall general intangibles, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all Intellectual Property;
(c) all Inventory;
(d) all chattel paper, including, without limitation, all tangible and electronic chattel paper;
(e) all instruments, including, without limitation, all promissory notes;
(f) all documents;
(g) all deposit accounts (other than the Note Trustee Collateral Account);
(h) all letters of the records credit, banker's acceptances and similar instruments and including all letter-of-credit rights;
(i) all supporting obligations and all present and future liens, security interests, rights, remedies, title and interest in, to and in respect of the Guarantor concerning any Receivables and other Collateral, including rights and remedies under or relating to guaranties, contracts of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant suretyship, letters of credit and credit and other insurance related to the Credit Agreement if deposited Collateral, rights of stoppage in transit, replevin, repossession, reclamation and other rights and remedies of an unpaid vendor, lienor or credited secured party, goods described in invoices, documents, contracts or instruments with respect to, or otherwise representing or evidencing, Receivables or other Collateral, including returned, repossessed and reclaimed goods, and deposits by and property of account debtors or other persons securing the obligations of account debtors;
(j) all investment property (including securities, whether certificated or uncertificated, securities accounts, security entitlements, commodity contracts or commodity accounts) and monies, credit balances, deposits and other property of Borrower now or hereafter held or received by or in transit to a Collateral AccountAgent, any Lender or its Affiliates or at any other depository or other institution from or for the account of Borrower, whether for safekeeping, pledge, custody, transmission, collection or otherwise;
(k) all commercial tort claims, including, without limitation, those identified in the Information Certificate;
(l) to the extent usednot otherwise described above, pursuant to the terms all Receivables;
(m) all Records; and
(n) all products and proceeds of the Guarantor’s Governing Documentsforegoing, in any form, including insurance proceeds and all claims against third parties for loss or damage to purchase Portfolio Investments (or destruction of or other than Permitted Investments deposited in involuntary conversion of any kind or credited to nature of any such account), to make payments or distributions to Investors in accordance with all of the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Collateral.
4.2 Notwithstanding the foregoing or anything to the contrary set forth in this Credit Agreement Section 4.1 hereof, the types or items of Collateral shall not include:
(a) any interests in real property or improvements thereon or fixtures;
(b) any equipment or other Loan Document fixed assets;
(ic) the term “Collateral” shall not include Note Trustee Collateral Account and any moneys, securities and instruments deposited or required to be deposited in the Unfunded Capital Commitments Note Trustee Collateral Account pursuant to the Note Indenture;
(d) all products and proceeds of any and all of the SOX Insidersforegoing types or items of Collateral in clauses (a) through (d) of this Section 4.2, including but not limited to in each case, whether now or hereafter owned or acquired by any of Borrower and its Subsidiaries; and
(e) any rights or interest in any contract, license or license agreement covering personal property of Borrower, so long as under the right to draw down Investor Capital Contributions on terms of such Unfunded Capital Commitmentscontract, license or license agreement, or any other interests applicable law with respect thereto, the grant of a security interest or lien therein to Agent is prohibited and such prohibition has not been waived or the consent of the SOX Insidersother party to such contract, license or license agreement has not been obtained or a lawful waiver of such prohibition under applicable law has not been obtained; provided, that, the foregoing exclusion shall in no way be construed to apply if anyany such prohibition is unenforceable under Sections 9-406, unless so elected by 9-407 or 9-408 of the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements UCC or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinapplicable law.
Appears in 1 contract
Sources: Loan and Security Agreement (Anchor Glass Container Corp /New)
Collateral. Subject to the terms of time periods set forth in Section 8.17 and the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunderObligations, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantHedging Liability, and Funds Transfer, Deposit Account Liability and Foreign LCs shall pledge and/or assign (in the case of any Hedging Liability or Funds Transfer, Deposit Account Liability and Foreign LCs, unless otherwise notified by way of security, the Borrower to the Administrative Agent) be secured by valid, for the benefit of each perfected, and enforceable Liens on and security interests in (subject to Permitted Liens) all right, title, and interest of the Secured PartiesBorrower and each Guarantor in substantially all of their respective accounts, as applicablechattel paper, a first priorityinstruments, security interest documents, contracts, general intangibles, letter of credit rights, supporting obligations, deposit accounts, investment property, inventory, equipment, fixtures, Intellectual Property, money, cash and ▇▇▇▇ in Cash Equivalents, commercial tort claims, real estate and on its interests in the followingcertain other Property, whether now owned or hereafter acquired or arising:
, and all proceeds thereof, in each case subject to the terms and conditions of the Collateral Documents; provided, however, that: (i) any and all Unfunded Capital Commitments Liens on the Voting Stock of a Foreign Subsidiary or a Disregarded Domestic Person shall be limited to 65% of the Investorstotal outstanding Voting Stock (and 100% of non-Voting Stock) of any Foreign Subsidiary or any Disregarded Domestic Person owned directly by the Borrower or one of its Domestic Subsidiaries; and provided, whether now further, that no stock of any Foreign Subsidiary or hereafter committed, including but any Disregarded Domestic Person not limited to owned directly by the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
Borrower or one of its Domestic Subsidiaries shall be pledged hereunder; (ii) no Lien shall be granted with respect to any leasehold real property; (iii) no Liens shall be granted with respect to any fee-owned real property; (iv) no Liens shall be granted with respect to any (x) Equity Interests in partnerships, joint ventures and any other Subsidiary that is not a Wholly-owned Subsidiary if such Equity Interests cannot be pledged without the consent of one or more Persons that is not a Loan Party or an Affiliate thereof, but only to the extent relating that any such prohibition is not rendered ineffective pursuant to the Unfunded Capital Commitments Section 9-406, 9-407, 9-408 or 9-409 of the Investors constituting Collateral in clause UCC (ior any successor provision or provisions thereof) above, (x) the Constituent Documentsor any other applicable law, (y) the Subscription Agreements and Side Lettersassets of a Foreign Subsidiary or a Disregarded Domestic Person, if any, of such Investors and (z) margin stock (within the meaning of Regulation U issued by the Federal Reserve Board); (v) no Lien shall be granted with respect to any Property or assets which are specifically the subject of any permit, lease, license, contract or agreement to which any Loan Party is a party or any of its rights or interests thereunder if and all guaranties only to the extent that the grant of the lien and security interest under a Collateral Document (x) is prohibited by or a violation of any law, rule or regulation applicable to such Investors’ obligations Loan Party or (y) shall constitute or result in a breach of a term or provision of, or the termination of or a default under the Constituent Documents terms of, such permit, lease, license, contract or agreement (other than to the extent that any such law, rule, regulation, term or provision would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of the UCC of any relevant jurisdiction or any other applicable law (including any debtor relief law or principle of equity)); (vi) no Liens shall be granted with respect to any Property or assets the pledge of which under a Collateral Document would require governmental consent, approval, license or authorization, but only to the extent that any such restriction on such pledge is not rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions thereof) or any other applicable law (provided, however, that the Collateral shall include (and Subscription Agreements including but not limited tosuch Lien shall attach) immediately at such time as, in each case as applicable, the consent referred to above is obtained or the contractual or legal provisions referred to above shall be obtained or shall no longer be applicable and to the extent severable, and shall attach immediately to any portion of clauses (x) such Equity Interests not subject to such consent specified in preceding clause (iv), (y) such Property and assets not specifically subject to such permit, lease, license, contract or agreement specified in preceding clause (v) and (z) such Property and assets not subject to such consent, approval, license or authorization specified in this clause (vi); and provided, further, that the exclusions referred to in clauses (iv), (v) and (vi) shall not include any and all representationsProceeds (as defined in the UCC) of any such Equity Interests, warrantiesProperty or assets); (vii) no Liens shall be granted in any “intent to use” trademark applications filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ Act, covenants and other agreements 15 U.S.C. § 1051, prior to the filing of such Investors a “Statement of Use” pursuant to Section 1(d) of the ▇▇▇▇▇▇ Act or guarantors contained therein, any and all duties and obligations an “Amendment to Allege Use” pursuant to Section 1(c) of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors ▇▇▇▇▇▇ Act with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description solely to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insidersextent, if any, unless so elected that, and solely during the period, if any, in which, a Lien therein would impair the validity or enforceability of any registration that issues from such intent-to-use application under applicable federal law; (viii) no Liens shall be granted (A) with respect to any property or assets to the extent the burden or cost of obtaining such Lien therein outweighs the benefit of the security afforded thereby as reasonably determined by the Guarantor Borrower and the Administrative Agent, or (B) with respect to any other property or assets as shall be excluded from the Collateral pursuant to the Collateral Documents; and (ix) no Liens shall be granted with respect to any Property or assets to the extent that same would result in its discretionmaterial adverse tax consequences as reasonably determined by the Borrower; provided, further, that (a) no Lien shall be perfected with respect to any Property or asset with respect to which the Borrower and the Collateral Agent reasonably determine that the burden or cost of perfecting a security interest in such Property or asset outweighs the benefit of perfection afforded thereby to the Secured Creditors, (b) no foreign law governed security or pledge agreement shall be required, (c) no landlord lien waivers, bailee letters or similar agreements shall be required and (d) the security interest granted pursuant the Collateral Documents upon the following Collateral shall not be required to be perfected: (i) cash and Cash Equivalents, deposit, securities and commodities accounts (including securities entitlements and related assets), in each case to the extent a security interest therein cannot be perfected by the filing of a financing statement under the UCC; (ii) other assets the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, security interest in which requires perfection through control agreements; (iii) the term “Collateral” shall not include vehicles and any collateral posted or received in connection with the Swap Agreements, other assets subject to certificates of title; (iv) commercial tort claims; and (v) letter of credit rights, in each case, to the extent a security interest therein cannot be perfected by the filing of a financing statement under the UCC. The Borrower acknowledges and agrees that the Liens on the Collateral may shall be subject granted to the Administrative Agent for the benefit of the holders of the Obligations, the Hedging Liability, and the Funds Transfer, Deposit Account Liability and Foreign LCs and shall be valid and perfected first priority Liens subject, however, to the proviso appearing at the end of the preceding sentence and to Permitted Liens, (v) a Borrower in each case pursuant to one or the Guarantor may maintain other bank accounts or securities accounts more Collateral Documents entered into by such Persons, each in addition form and substance reasonably satisfactory to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinAgent.
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Collateral. Subject (a) To secure full and complete payment and ---------- performance of the Obligations, the Borrower shall, and shall cause each of the Restricted Subsidiaries to, grant and convey to and create in favor of, the Administrative Agent for the ratable benefit of the Lenders a continuing first priority (subject, except for Equity Interests, to any prior Liens permitted by Section 8.3) ----------- perfected Lien and security interest in, to and on all of the Collateral, of the Borrower and such Restricted Subsidiaries (except to the terms extent prohibited by law or as otherwise provided by law or as otherwise provided in the Security Agreements or Intellectual Property Security Agreements) including but not limited to the following: (i) all of the Borrower's and such Restricted Subsidiaries' present and future non-real estate assets (other than (A) Equity Interests in Unrestricted Subsidiaries; (B) minority Equity Interests, acquired in accordance with and pursuant to Section ------- 8.8(b), in Persons that are not Subsidiaries if the Borrower or Restricted ------ Subsidiary, as the case may be, is contractually prohibited from creating a Lien in such minority Equity Interests; and (C) licenses and operating permits in which applicable law prohibits the creation of a Lien), including, without limitation, their equipment, inventory, accounts receivable, instruments, general intangibles, intellectual property (in each case, unless otherwise agreed by the Administrative Agent); and (ii) all of the Equity Interests of each Restricted Subsidiary owned by the Borrower or any other Restricted Subsidiary, now owned or hereafter acquired by the Borrower or such other Restricted Subsidiary.
(b) With respect to any new Restricted Subsidiary created or acquired after the Effective Date, (i) the Borrower, and/or any Restricted Subsidiary owning the Equity Interests of such new Restricted Subsidiary, shall promptly execute and deliver to the Administrative Agent such amendments to the Pledge Agreements of the applicable Collateral Documents, Loan Party as the Administrative Agent deems necessary or advisable in order to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, grant to the Administrative Agent, for the benefit of each the Lenders, a perfected first priority security interest in the Equity Interests of such new Restricted Subsidiary, (ii) in the case of any such new Restricted Subsidiary, such new Restricted Subsidiary shall promptly execute and deliver to the Administrative Agent a Guaranty, Pledge Agreement, Security Agreement and, if necessary, an Intellectual Property Security Agreement, (iii) the applicable Loan Party owning Equity Interests of the Secured Partiesnew Restricted Subsidiary and such new Restricted Subsidiary shall deliver any certificates representing the Equity Interests of such new Restricted Subsidiary and any Restricted Subsidiary of such new Restricted Subsidiary, respectively, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the applicable Loan Party, (iv) the applicable Loan Party owning Equity Interests of the new Restricted Subsidiary and such new Restricted Subsidiary shall take such other actions as shall be necessary or advisable to grant to the Administrative Agent for the benefit of the Lenders a perfected first priority security interest in the assets of, and Equity Interests in, such new Restricted Subsidiary, including, without limitation, the filing of such Uniform Commercial Code financing statements as may be requested by the Administrative Agent, and (v) if requested by the Administrative Agent, the Borrower shall cause to be delivered to the Administrative Agent legal opinions relating to the matters described in the preceding clauses (i), (ii), (iii) and (iv), which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
(c) With respect to any newly acquired assets or transfers of assets to the Borrower or a Restricted Subsidiary (other than: (A) Equity Interests in Unrestricted Subsidiaries, and (B) minority Equity Interests in Persons that are not Subsidiaries, acquired in accordance with and pursuant to Section 8.8(b), if the Borrower or Restricted Subsidiary, as applicable-------------- the case may be, is contractually prohibited from creating a first priorityLien in such minority Equity Interests), security interest promptly after acquiring or receiving any such asset, execute and ▇▇▇▇ deliver or cause to be delivered to the Administrative Agent in and on its interests in a form reasonably acceptable to the following, whether now owned or hereafter acquired or arising:
Administrative Agent (i) one or more Pledge Agreements, Security Agreements and/or Intellectual Property Security Agreements which grant to the Administrative Agent a first priority perfected security interest in such assets (subject, except for Equity Interests, to any prior Liens permitted by Section 8.3 and all Unfunded Capital Commitments of as ----------- otherwise provided in the InvestorsSecurity Agreements and Intellectual Property Security Agreements) and (ii) such additional agreements and other documents as the Administrative Agent reasonably deems necessary to establish a valid, whether now or hereafter committed, enforceable and perfected first priority security interest in such Collateral including but not limited to Collateral consisting of Intellectual Property (subject, except for Equity Interests, to any Liens permitted by Section 8.3 and as otherwise provided in the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors ----------- Security Agreements and to issue Investor Capital Calls with respect thereto;Intellectual Property Security Agreements).
(iid) Upon request of the Administrative Agent, promptly execute and deliver or cause to be executed and delivered to the extent relating Administrative Agent in a form reasonably acceptable to the Unfunded Capital Commitments of the Investors constituting Collateral in clause Administrative Agent (i) aboveone or more Pledge Agreements, Security Agreements and/or Intellectual Property Security Agreements which grant to the Administrative Agent a first priority perfected security interest (x) subject, except for Equity Interests, to any Liens permitted by Section 8.3 and as otherwise provided in the Constituent Documents, (y) the Subscription ----------- Security Agreements and Side Letters, if any, of Intellectual Property Security Agreements) in such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any Collateral of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral AccountBorrower or a Restricted Subsidiary, including but not limited to any and all funds and financial assets on deposit therein Equity Interests of direct or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral includingindirect Restricted Subsidiaries, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could as shall be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected specified by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and (ii) such additional agreements and other documents as the Secured Parties shall not have any Lien on any Administrative Agent reasonably deems necessary to establish a valid, enforceable and perfected first priority security interest in such property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinor Equity Interests.
Appears in 1 contract
Sources: Credit Agreement (Radio One Inc)
Collateral. Subject to the terms of the applicable Collateral Documents, to To secure the full and complete payment and performance of the Obligations, the Borrower and the Guarantors (as the case may be) have executed and delivered the documents described below covering the property and collateral described in this Section 6.1 (which, together with any other property and collateral which may now or hereafter secure the Secured Obligations hereunderor any part thereof, is sometimes herein called the "Collateral"):
(a) The Borrower and the Domestic Guarantors have respectively executed the Pledge and Security Agreement pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, which such Persons have granted to the Administrative Agent, Agent for its benefit and for the benefit of each the Banks a first priority security interest in (i) all of such Persons' accounts accessions, chattel paper, commercial tort claims, commodity accounts, commodity contracts, deposit accounts, documents, equipment, financial assets, fixtures, general intangibles, goods, instruments, intellectual property, inventory, investment property, letters of credit, letter of credit rights, payment intangibles, licenses, permits, securities, securities accounts, security entitlements, software, supporting obligations, cash and cash accounts, (ii) 100% of the Secured PartiesCapital Stock issued to such Persons by any Domestic Subsidiary or Foreign Guarantor, (iii) 65% of the Capital Stock issued to such Persons by any Foreign Subsidiary that is not a Foreign Guarantor, (iv) promissory notes made by any Subsidiary payable to the order of the Borrower or such Domestic Guarantor, and (v) all products and proceeds related to any of the above.
(b) The Borrower and the Domestic Guarantors have respectively executed the Mortgages pursuant to which such Persons have granted to the Agent for its benefit and for the benefit of the Banks a first priority lien on all unencumbered real property owned by such Persons.
(c) The Borrower and the Guarantors shall execute or authenticate and cause to be executed or authenticated, such further agreements, documents and instruments, including without limitation, as applicable, a first priorityfinancing statements under the UCC, as the Agent, in its sole discretion, deems necessary or desirable to create, preserve, evidence, and perfect its liens and security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 1 contract
Collateral. Subject to 5.1 As collateral security for the terms prompt performance, observance and payment in full of all of the applicable Collateral DocumentsObligations, each Borrower hereby grants, pledges and assigns to secure Agent for itself and the payment ratable benefit of Lenders, and performance of the Obligations hereunderconfirms, pursuant reaffirms and restates its prior grant to a Collateral Account PledgeAgent (as successor to Congress) of, a Security Agreement, the related financing statements continuing security interest in and the other related documents, the Guarantor shall granta lien upon, and shall pledge and/or assign by way a right of securitysetoff against, and hereby assigns to the Administrative Agent, for itself and the ratable benefit of each Lenders, as security, all of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether following now owned or and hereafter acquired or arising:existing assets and properties of such Borrower (which assets and properties, together with all other collateral security for the Obligations granted to or otherwise held or acquired by Agent or any Lender are referred to herein as the “Collateral”):
(ia) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoAccounts;
(iib) to the extent all contracts, contract rights, licenses, customer lists and other general intangibles relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors Receivables or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Accountdescribed in this Section 5, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all Intellectual Property to the extent affixed to, or to be affixed to, any Inventory or other property described in this Section 5 for purposes of selling the same, or otherwise necessary or reasonably desirable in connection with the collection, sale or other disposition of the records of the Guarantor concerning Receivables or any of the foregoing Collateral; excluding other property described in this Section 5, choses in action, causes of action and other claims and rights relating to the Receivables and Inventory, including, without limitation, those against Account Debtors, and against shippers and carriers, agreements or arrangements with sales agents, distributors or the like and/or consignees, warehouses or other third persons in possession of any Inventory, and guaranty or warranty claims with respect to Receivables or Inventory;
(Ac) all Inventory;
(d) all chattel paper, including, without limitation, all tangible and electronic chattel paper;
(e) all instruments that evidence or relate to any funds properly withdrawn from a Collateral Account Receivables or other property described in this Section 5, including, without limitation, all promissory notes that evidence or relate to any Receivables or other property described in this Section 5;
(f) all documents which relate to any Receivables or other property described in this Section 5 and documents of title with respect to any Inventory or which evidence or relate to indebtedness arising pursuant to Receivables or other property described in this Section 5;
(g) all Blocked Accounts, or any deposit account (or that could be withdrawn pursuant other account) used in connection with the collection of Receivables or other property described in this Section 5 or the remittance thereof to the Credit Agreement if deposited Agent or credited to a Collateral Accountany Lender, or containing proceeds of Receivables or other property described in this Section 5;
(h) to the extent usedall letters of credit, pursuant to the terms of the Guarantorbanker’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited acceptances and similar instruments and including all letter-of-credit rights relating to any such account), to make payments Receivables or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary property described in this Credit Agreement or any other Loan Document Section 5;
(i) the term “all supporting obligations and all present and future liens, security interests, rights, remedies, title and interest in, to and in respect of Receivables and other Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited (i) rights and remedies under or relating to guaranties, contracts of suretyship, letters of credit and credit and other insurance related to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretionCollateral, (ii) the term “Collateral” shall not include any Portfolio Investmentrights of stoppage in transit, any Portfolio Assets replevin, repossession, reclamation and other rights and remedies of an unpaid vendor, lienor or any Excluded Proceedssecured party, (iii) the term “Collateral” shall not include any collateral posted goods described in invoices, documents, contracts or received in connection instruments with the Swap Agreementsrespect to, (iv) the Collateral may be subject to Permitted Liensor otherwise representing or evidencing, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements Receivables or other restrictions Collateral, including returned, repossessed and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”reclaimed goods, except in connection with any Swap Agreement, as provided therein.and
Appears in 1 contract
Sources: Loan and Security Agreement (Doe Run Resources Corp)
Collateral. Subject to the terms of the applicable Collateral Documents, to To secure the full and complete payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementSecured Obligations, the related financing statements Borrower shall execute and deliver or cause to be executed and delivered the documents described below covering the property and collateral described in this Section 6.14 (which, together with any other related documentsproperty and collateral which may now or hereafter secure the Secured Obligations or any part thereof, is sometimes herein called the Guarantor shall grant“Collateral”):
(a) The Borrower will, and shall pledge and/or assign by way will cause each of securityits Material Domestic Subsidiaries to, grant to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, priority security interest (subject only to Permitted Liens) in all of its Accounts, chattel paper, instruments, documents, books, records, letter-of-credit rights, Inventory, machinery, equipment, Rolling Stock, financial assets, investment property, contract rights, deposit accounts, trademarks, patents, copyrights, other material intellectual property, payment intangibles, other general intangibles, commercial tort claims, Real Property and ▇▇▇▇ fixtures (but only to the extent proposed by the Borrower to be, and qualified as, Eligible Real Property), 100% of Equity Interests in its Material Domestic Subsidiaries and on its interests 66% of Equity Interests in Foreign Subsidiaries owned directly by the followingBorrower or any Domestic Subsidiary, and other personal property subject to the Lien granted pursuant to the Security Agreement, whether now owned or hereafter acquired acquired, and all products and cash and non-cash proceeds thereof, pursuant to the Security Agreement or, in the case of Real Property and fixtures, a Real Property Mortgage, provided in all cases that, notwithstanding anything to the contrary herein or arising:
in the other Loan Documents, (i) any perfection and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not priority in such collateral shall be limited to the right extent that perfection may be obtained (A) by the filing of a centralized UCC-1 financing statement, (B) by patent, trademark or copyright office filings in the United States of America (provided, that following the Closing Date the Administrative Agent shall only perfect its security interest in after-acquired patents, trademarks and copyrights to draw down Investor Capital Contributions the extent such intellectual property is material to the business of any Loan Party as reasonably determined by such Loan Party), (C) by possession and indorsement of stock certificates, chattel paper and instruments, (D) automatically pursuant to the UCC, (E) by entering into deposit account or securities account control agreements, (F) by the filing of UCC-1 financing statements on such Unfunded Capital Commitments from such Investors Aggregates constituting as-extracted collateral in the applicable real property records, (G) by compliance with the procedures set forth in any applicable certificate of title statutes for perfecting a Lien on Rolling Stock, including the notation of the Administrative Agent’s Lien on the certificates of title therefor, but only to the extent authorized under Section 6.14(c), (H) in the case of locomotives and to issue Investor Capital Calls railcars, by the filing of a mortgage or security agreement with respect thereto;
the Surface Transportation Board of the U.S. Department of Transportation, and (I) in the case of Real Property and fixtures, by the filing of Real Property Mortgages in the applicable real property records, and (ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but security interest shall not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding cover (A) any funds properly withdrawn from a Collateral Account (fixtures or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (Real Property other than Permitted Investments deposited in or credited those proposed by the Borrower to any such account)be Eligible Real Property, to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) any assets subject to a Lien permitted by clause (g) of the proceeds definition of such withdrawn funds “Permitted Liens”, or (C) any assets with respect to which there are effective and enforceable legal restrictions against the items in (A) and (B), collectively “Excluded Proceeds”)granting of a security interest therein. Notwithstanding the foregoing or anything clause (i)(F) above to the contrary contrary, the Administrative Agent will not perfect its Lien on Aggregates constituting as-extracted collateral by the filing of financing statements in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include applicable real property records until the Unfunded Capital Commitments first to occur of the SOX Insidersan Event of Default, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital CommitmentsAvailability is less than $60,000,000, or any other interests notice of a transaction described in clause (b) below (in which case the SOX InsidersAdministrative Agent shall only perfect its Lien on Aggregates constituting as-extracted collateral located at the relevant property).
(b) The Borrower shall, if anyand shall cause each Subsidiary to, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) provide the Administrative Agent and the Secured Parties Collateral Agents with not less than 30 days prior written notice of its intention to ▇▇▇▇▇ ▇ ▇▇▇▇ securing Debt (other than the Obligations) on the Mill Creek, Bridgeport, Midlothian, Hunter or Oro Grande plants or any other Real Property at which Aggregates with a Value equal to or exceeding $5,000,000 are located, which notice shall not have include a legal description of such Real Property and the name of the fee owner thereof. Neither the Borrower nor any Subsidiary shall ▇▇▇▇▇ ▇ ▇▇▇▇ described in the preceding sentence until after such time as the Administrative Agent has filed a UCC-1 financing statement in the applicable real property records perfecting its Lien on in any property Aggregates constituting as-extracted collateral that is not “Collateral”are mined or extracted from such real estate.
(c) To the extent the Borrower and its Subsidiaries from time to time after the Closing Date acquire additional locomotive and railcars, except they shall give prompt notice thereof to the Administrative Agent and Collateral Agents and shall provide to the Administrative Agent additional mortgages and security agreements (or amendments or supplements to previous mortgages and security agreements) describing such additional locomotives and railcars and in connection form and substance satisfactory to the Administrative Agent for filing with any Swap Agreement, as provided therein.the Surface Transportation Board of the U.S.
Appears in 1 contract
Collateral. Subject As collateral security for the payment in full when due (whether at stated maturity, by acceleration or otherwise) of its Secured Obligations, each Obligor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, Agent for the benefit of each the Secured Parties as hereinafter provided a security interest in all of such Obligor’s right, title and interest in, to and under all of the Secured Partiesfollowing property and assets, in each case whether tangible or intangible, wherever located, and whether now owned by such Obligor or hereafter acquired and whether now existing or hereafter coming into existence (all of the property described in this Section 4 being collectively referred to herein as applicable“Collateral”):
(a) all Accounts, all Chattel Paper, all Deposit Accounts, all Documents, all General Intangibles (including all Intellectual Property), all Instruments (including all Promissory Notes), all Portfolio Investments, all Pledged Debt, all Pledged Equity Interests, all Investment Property not covered by the foregoing (including all Securities, all Securities Accounts and all Security Entitlements with respect thereto and Financial Assets carried therein, all Commodity Accounts and Commodity Contracts, and, for the avoidance of doubt, all of such Obligor’s interest in the limited liability company or membership interests of each Subsidiary owned by such Obligor, all of such Obligor’s right to participate in the management of the business and affairs of each such issuer or otherwise control each such Subsidiary, and all of such Obligor’s rights as a first prioritymember of each such Subsidiary), all letters of credit and Letter-of-Credit Rights, all Money and all Goods (including Inventory and Equipment), and all Commercial Tort Claims;
(b) to the extent related to any Collateral, all Supporting Obligations;
(c) to the extent related to any of the foregoing Collateral, all books, correspondence, credit files, records, invoices and other papers (including all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Obligor or any computer bureau or service company from time to time acting for such Obligor); and
(d) all Proceeds of any of the foregoing Collateral. IT BEING UNDERSTOOD, HOWEVER, that (A) in no event shall the security interest and ▇▇▇▇ granted under this Section 4 attach to (1) any contract, property rights, obligation, instrument or agreement to which an Obligor is a party (or to any of its rights or interests thereunder) if the grant of such security interest would constitute or result in and on its interests either (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Obligor therein or (ii) a breach or termination pursuant to the terms of, or a default under, any such contract, property rights, obligation, instrument or agreement (other than to the extent that any such terms would be rendered ineffective by Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code as in effect in the followingrelevant jurisdiction), or (2) any Excluded Assets, and notwithstanding anything to the contrary provided in this Agreement, the term “Collateral” shall not include, and the Obligors shall not be deemed to have granted a security interest in, any Excluded Assets and (B) the Obligors, may by notice to the Collateral Agent, exclude from the grant of a security interest provided above in this Section 4, any Special Equity Interest designated by the Borrower in reasonable detail to the Collateral Agent in such notice (it being understood that the Borrower may at any later time rescind any such designation by similar notice to the Collateral Agent). Each Obligor hereby authorizes the Collateral Agent at any time and from time to time (and reaffirms its authorization given prior to the Restatement Effective Date) to file or record financing statements, continuation statements thereof, amendments thereto and other filing or recording documents or instruments with respect to the Collateral in such form and in such offices as the Collateral Agent determines, in its reasonable discretion, are necessary or advisable to perfect and maintain a continuing perfection of the first priority security interests of the Collateral Agent under this Agreement. Each Obligor also authorizes the Collateral Agent to use the collateral description “all personal property of the debtor” or “all assets of the debtor,” in each case “whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments ” or words of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on similar meaning in such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinfinancing statements.
Appears in 1 contract
Sources: Guarantee, Pledge and Security Agreement (FIDUS INVESTMENT Corp)
Collateral. Subject to the terms of the applicable Collateral DocumentsThe Obligations, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantHedging Liability, and Funds Transfer and Deposit Account Liability shall pledge and/or assign be secured by way of security(a) the property pledged by the Mortgage, to and (b) the Administrative Agent, for the benefit following property of each of the Secured PartiesBorrower, as applicable, a first priority, security interest wherever located and ▇▇▇▇ in and on its interests in the following, whether now owned by such Borrower or hereafter acquired or arising:
acquired: (i) any all Accounts, Inventory, Goods (including, without limitation, Equipment and all Unfunded Capital Commitments Fixtures), Investment Property, Instruments, Chattel Paper, Letter of the InvestorsCredit Rights, whether now or hereafter committedDeposit Accounts, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors General Intangibles, Documents and to issue Investor Capital Calls with respect thereto;
Supporting Obligations; (ii) to the extent relating to the Unfunded Capital Commitments all money deposits and all funds held on deposit or otherwise under control of the Investors constituting Collateral in clause (i) aboveAgent, (x) its agents or any correspondence of the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
Agent; (iii) any and all agreementsan assignment of life insurance as set forth on Schedule 4.1, instruments and other documents of every kind or description on forms satisfactory to the extent evidencing or supporting obligations under any of the foregoing Collateral Agent, and any and all security and other property with respect to such Collateral;
(iv) each Collateral Accountall parts, including but not limited to any accessions to, replacements, substitutions, profits, products and all funds cash and financial assets on deposit therein or credited thereto; and
(v) any and all non-cash proceeds of any of the foregoing Collateral including(including insurance proceeds payable by reason of loss or damage thereto) in any form and wherever located, without limitation, and shall also include all of the written or electronically recorded books and records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited related to any such accountcollateral and other rights related thereto. (All of the foregoing, collectively, the "Collateral"). With respect to any real estate collateral pledged by the Mortgage, the Borrowers shall pay all taxes, costs and expenses incurred by the Agent in recording such Mortgage, and shall supply the Agent, at the Borrowers' cost and expense, such hazard insurance and a mortgagee's policy of title insurance from a title insurer acceptable to Agent, as Agent shall reasonably request, together with such other instruments, documents, certificates and opinions reasonably required by the Agent in connection therewith. The Borrowers acknowledge and agree that the Liens on the Collateral shall be granted to the Agent for the benefit of the holders of the Obligations, the Hedging Liability, and the Funds Transfer and Deposit Account Liability and shall be valid and perfected first priority Liens subject, however, to make payments the liens permitted pursuant to Section 8.8, in each case pursuant to one or distributions to Investors more Collateral Documents from such Persons, each in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents form and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything substance reasonably satisfactory to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinAgent.
Appears in 1 contract
Sources: Credit Agreement (Synalloy Corp)
Collateral. Subject For the purposes of this Agreement, all of the following property now owned or at any time hereafter acquired by a Grantor or in which a Grantor now has or at any time in the future may acquire any right, title or interest is collectively referred to as the “Collateral”:
(a) all accounts, chattel paper, deposit accounts and cash balances therein, documents (as defined in the UCC), equipment, general intangibles, instruments, inventory, investment property, letter of credit rights, insurance claims and proceeds, all other contract rights or rights to the terms payment of money, financial assets, securities (whether certificated or uncertificated, and including investment company securities), security entitlements, securities accounts, commodity contracts, and commodity accounts, including all substitutions and additions thereto, and all dividends, distributions and sums distributable or payable from, upon or in respect of such property, and any supporting obligations related thereto;
(b) the applicable Collateral Documents, to secure commercial tort claims described on Schedule 3.1 and on any supplement thereto received by the payment and performance of the Obligations hereunder, Administrative Agent pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements Section 5.9;
(c) all books and records pertaining to the other related documentsproperty described in this Section 3.1;
(d) all property of such Grantor held by any Secured Party, including all property of every description, in the Guarantor shall grantcustody of or in transit to such Secured Party for any purpose, and shall pledge and/or assign by way of securityincluding safekeeping, to the Administrative Agentcollection or pledge, for the benefit account of each of the Secured Parties, such Grantor or as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned to which such Grantor may have any right or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committedpower, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretocash;
(iie) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause all other goods (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any fixtures) and all funds personal property of such Grantor, whether tangible or intangible and financial assets on deposit therein or credited theretowherever located; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Accountf) to the extent usednot otherwise included, pursuant to the terms all proceeds of the Guarantor’s Governing Documentsforegoing; provided, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account)however, to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term that “Collateral” shall not include any Portfolio InvestmentExcluded Property; and provided, any Portfolio Assets or any Excluded Proceedsfurther, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” if and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on when any property that is not “shall cease to be Excluded Property, such property shall be deemed at all times from and after the date thereof to constitute Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 1 contract
Sources: Guaranty and Security Agreement (Assisted Living Concepts Inc)
Collateral. Subject (a) As collateral security for the performance of its obligations hereunder, the Portfolio Manager hereby (i) pledges to the terms Issuer and grants to the Issuer a security interest in all of the applicable Collateral DocumentsPortfolio Manager’s right, title and interest in, to secure and under the payment CLO Asset Management Fees and performance all proceeds of the Obligations hereunderforegoing, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of in each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, case whether now owned or hereafter acquired and whether now existing or arisinghereafter coming into existence and (ii) acknowledges and agrees that the Issuer will pledge its rights therein to the Collateral Agent as provided in Section 8.1(b).
(b) As collateral security for the prompt payment in full and performance when due (whether at stated maturity, by acceleration, by liquidation or otherwise) of the Secured Obligations to the Collateral Agent on behalf of the Secured Parties in accordance with the Priority of Payments, the Issuer hereby pledges to the Collateral Agent and grants to the Secured Parties a security interest in all of the Issuer’s right, title and interest in, to and under (i) each Collateral Debt Obligation, (ii) all underlying instruments with respect to Collateral Debt Obligations, (iii) the Collateral Administration Agreement, (iv) the Administration Agreement by and between the Issuer and MaplesFS Limited, as amended from time to time in accordance with its terms, (v) the Registered Office Agreement dated as of September 26, 2011 by and between the Issuer and MaplesFS Limited, as amended from time to time in accordance with its terms, (vi) each Account and all assets credited to and funds on deposit therein, (vii) the CLO Asset Management Fees and (viii) all proceeds of the foregoing, in each case whether now owned or hereafter acquired and whether now existing or hereafter coming into existence, other than Excepted Property (collectively, the “Collateral”).
(c) The Issuer will:
(i) Deliver to the Collateral Administrator any and all Unfunded Capital Commitments securities and instruments evidencing or otherwise relating to Collateral, endorsed and/or accompanied by such instruments of assignment and transfer in such form and substance as the Investors, whether now or hereafter committedSecured Parties may reasonably request, including but not limited by taking all steps necessary to ensure that all Collateral Debt Obligations are credited to the right applicable Account and the CLO Asset Management Fees are credited to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors the CLO Asset Management Fees Account by the Collateral Administrator and to issue Investor Capital Calls held in accordance with respect theretothe Collateral Administration Agreement;
(ii) give, execute, deliver, file and/or record any financing statement, notice, instrument, document, agreement or other papers that may be necessary or desirable (in the reasonable judgment of either Secured Party) to create, preserve, perfect or validate the extent relating security interest granted hereunder or to enable the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights Senior Noteholder to compel performance exercise and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors its rights hereunder with respect theretoto such pledge and security interest;
(iii) any and all agreements, instruments and other documents of every kind promptly furnish or description cause to be furnished to the extent evidencing Senior Noteholder or supporting obligations Junior Noteholder any information that it may reasonably request concerning the Collateral; and
(iv) preserve and protect (with respect to the Collateral) the Secured Parties’ perfected, first priority security interest in the Collateral, and take or cause any action requested by a Secured Party and necessary to preserve, defend, protect or perfect such first priority security interest.
(d) Except as expressly permitted hereunder and under the Collateral Administration Agreement, the Portfolio Manager (with respect to the CLO Asset Management Fees) and the Issuer (with respect to the Collateral) will not sell, assign, pledge, grant any security interest in, exchange, transfer, hypothecate or otherwise dispose of the foregoing Collateral and or grant any and all security and other property option with respect to such CLO Asset Management Fees or Collateral;
(iv) each Collateral Account, including but not limited respectively, or agree to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of do any of the foregoing Collateral includingforegoing, without limitation, all the prior written consent of Senior Commitment Party.
(e) The Secured Parties hereby appoint the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Bank as “Collateral Account (or that could be withdrawn pursuant Agent” to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors act on their behalf in accordance with this Agreement. If a Liquidation Event occurs, the terms hereof or for any other purpose permitted liquidation shall be effected as set forth in Section 3.2. The Bank in each of its capacities under this Agreement shall have the same indemnities and immunities provided to the Bank as Collateral Administrator under the Guarantor’s Governing Documents Collateral Administration Agreement. In connection with a resignation of the Bank as Collateral Administrator, the Bank may resign from its other capacities pursuant to this Agreement.
(f) The Issuer hereby irrevocably appoints the Collateral Agent as its attorney-in-fact with full power of substitution and this Credit Agreement, authorizes the Collateral Agent to take any action and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything execute any instruments with respect to the contrary Collateral that the Controlling Party may deem necessary or advisable in this Credit Agreement or any other Loan Document connection with (i) the term “Collateral” shall not include Issuer’s grant of a security interest in the Unfunded Capital Commitments of the SOX Insiders, including but not limited Collateral to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or Secured Parties and any other interests of rights and remedies that the SOX Insiders, if any, unless so elected by Collateral Agent may exercise in respect thereof upon the Guarantor in its discretionoccurrence a Liquidation Event, (ii) the term “filing of one or more financing or continuation statements with respect to the Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include sale, termination or other disposition of any collateral posted Collateral Debt Obligations as provided herein or received in connection with the Swap Agreements, (iv) accomplishing any other purposes of this Agreement. The Issuer agrees that the powers granted by this paragraph are exercisable at the direction of the Controlling Party and are not intended to impose the obligations of Issuer on the Collateral may Agent. This power of attorney shall be subject binding upon, and enforceable against, all beneficiaries, successors, assigns, transferees and legal representatives of the Issuer.
(g) The security interest granted to Permitted Liens, (v) a Borrower or secure the Guarantor may maintain other bank accounts or securities accounts Secured Obligations hereunder shall be terminated and released and all rights in addition the Collateral will revert to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) Issuer on the Administrative Agent and Refinancing Date upon application of the Secured Parties shall not have any Lien on any property that is not “Collateral”, except Available Funds in accordance with the Priority of Payments. In connection with any Swap Agreementsuch termination and release, the Collateral Agent shall execute and deliver such documents, instruments and certificates as provided thereinthe Issuer shall reasonably require at the Issuer’s expense.
Appears in 1 contract
Collateral. Subject (i) Without the consent of any other person, but subject to the terms of the any applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Intercreditor Agreement, the related financing statements applicable Credit Party or Credit Parties and the other related documentsAdministrative Agent and/or Collateral Agent may (in its or their respective sole discretion, the Guarantor shall grant, and shall pledge and/or assign by way of securityor shall, to the Administrative Agentextent required by any Loan Document enter into any amendment or waiver of any Loan Document, or enter into any new agreement or instrument), to effect the granting, perfection, protection, expansion (including to cover additional amounts as secured obligations thereunder) or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of each of the Secured Parties, or as applicablerequired by local law to give effect to, a first priority, or protect any security interest and ▇▇▇▇ in and on its interests in for the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments benefit of the InvestorsSecured Parties, whether now in any property or hereafter committed, so that the security interests therein comply with applicable Requirements of Law (including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;local law).
(ii) Notwithstanding anything in this Agreement or any Security Document to the extent relating to contrary, the Unfunded Capital Commitments Administrative Agent and/or, as applicable, the Collateral Agent may, in its sole discretion, grant extensions of time for the satisfaction of any of the Investors constituting requirements under Sections 5.10 and 5.11 or of any Security Document in respect of any particular Collateral in clause (i) above, (x) or any particular Subsidiary if it determines that the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions satisfaction thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;to such Collateral or such Subsidiary cannot be accomplished without
(iii) The Lenders hereby irrevocably agree that the Liens granted to the Collateral Agent by the Credit Parties on any and all agreementsCollateral shall be automatically released (i) in full, instruments and upon the Payment in Full of the Obligations, (ii) upon the sale or other documents disposition of every kind or description such Collateral to any Person other than another Credit Party, to the extent evidencing such sale or supporting obligations under other disposition is made in compliance with the terms of this Agreement (and the Collateral Agent may rely conclusively on a certificate to that effect provided by any Credit Party upon its reasonable request without further inquiry), (iii) if the release of such Lien is approved, authorized or ratified in writing by the Required Lenders (or such other percentage of the foregoing Collateral and any and all security and other property Lenders whose consent may be required in accordance with respect to such Collateral;
this Section 10.02), (iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent usedthe property constituting such Collateral is owned by any Guarantor, pursuant to upon the terms release of such Guarantor from its obligations under the Guarantor’s Governing Documents, to purchase Portfolio Investments applicable Guarantee (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds final paragraph of such withdrawn funds (the items in (A) and (BSection 9.10), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition as required to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements effect any sale or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except disposition of Collateral in connection with any Swap Agreementexercise of remedies of the Collateral Agent pursuant to the Security Documents, as provided thereinor (vi) if such assets constitute Excluded Property.
Appears in 1 contract
Collateral. Subject Without limitation to the terms of security interests and Liens provided in the applicable Orders, each Grantor hereby pledges, collaterally assigns and transfers to the Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grantAgent, and shall pledge and/or assign by way of security, hereby grants to the Administrative Collateral Agent, for the benefit of each of the Secured Parties, in each case subject to the entry by the Bankruptcy Court of the Interim Order (as applicablethe same may be amended, supplemented or otherwise modified by the Final Order), a first priority, lien on and a security interest and ▇▇▇▇ in and on its interests in in, all of the following, whether now owned or at any time hereafter acquired by such Grantor or arisingin which such Grantor now has or at any time in the future may acquire any right, title or interest, wherever located (collectively, the “Collateral”), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of all the Secured Obligations:
(ia) any all Accounts and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoaccounts receivable;
(iib) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause all Chattel Paper (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(c) all Commercial Tort Claims, including without limitation those listed on Schedule 4 or described in any notice sent pursuant to Section 4.08;
(d) all Commodity Accounts, Deposit Accounts and Securities Accounts;
(e) all Contracts, including, but not limited to each swap contract to which such Grantor is now or may hereafter become a party, in each case as such agreements may be amended, amended and restated, supplemented or otherwise modified from time to time (collectively, the “Assigned Agreements”) and all Contract Rights arising thereunder;
(f) all Documents;
(g) all Equipment;
(h) all Financial Assets;
(i) all Fixtures;
(j) all General Intangibles (including franchise rights);
(k) all Goods;
(l) all Instruments;
(m) all Intellectual Property, Copyright Licenses, Patent Licenses and Trademark Licenses;
(n) all Inventory;
(o) all Investment Property (including, for the avoidance of doubt, all Equity Interests, interest in the limited liability company, or membership interests of each Issuer owned by such Grantor, all of such Grantor’s right to participate in the management of the records business and affairs of each such Issuer or otherwise control each such Issuer, and all of such Grantor’s rights as a shareholder or member of each such Issuer);
(p) all Letters of Credit, Letter-of-Credit Rights and Payment Intangibles;
(q) all money, cash and Cash Equivalents;
(r) subject to entry of the Guarantor concerning Final Order, Avoidance Proceeds;
(s) all DIP Collateral (as defined in the Orders);
(t) all distributions, monies, fees, payments, compensations and proceeds now or hereafter becoming due and payable with respect to the Pledged Stock and the Pledged Debt, whether payable as profits, distributions, asset distributions, repayment of loans or capital or otherwise;
(u) all other property not otherwise described above (except for any property specifically excluded from any other clause in this section, and any property specifically excluded from any defined term used in any clause of this section);
(v) all insurance payments, proceeds, refunds, and premium rebates (including, without limitation, with respect to fire and credit insurance), whether or not any of such payments, proceeds, refunds, and premium rebates arise out of any of the foregoing Collateral; excluding (A) and whether or not the Collateral Agent is the lender loss payee or loss payee thereof, and all other payments, proceeds, refunds and premium rebates with respect to any funds properly withdrawn from a Collateral Account (indemnity, warranty or that could be withdrawn pursuant guaranty by reason of loss or damage to or otherwise with respect to the Credit Agreement if deposited or credited Collateral;
(w) all books, records, and information pertaining to a the Collateral Accountand/or to the operation of any Grantor’s business, and all rights of access to such books, records, and information;
(x) to the extent usednot otherwise included, all Proceeds, Supporting Obligations and products of, and all income, royalties and other payments now or hereafter due and payable with respect to, any and all of the foregoing and all collateral security, liens, guarantees, rights, remedies and privileges given by any Person with respect to any of the foregoing; and
(y) subject to the Orders, all other unencumbered property, which was unencumbered prior to the date hereof of each Grantor; provided that, notwithstanding any of the foregoing, no Lien or security interest is hereby granted on any Excluded Asset; provided, further, that if and when any property shall cease to be an Excluded Asset, a Lien on and security interest in such property shall be deemed granted therein to the Collateral Agent, for the benefit of the Secured Parties. Each of the Grantors agree to cooperate in execution of applicable Security Agreements for any property that ceases to be an Excluded Asset. The Collateral Agent is further authorized, and each Grantor hereby grants the Collateral Agent with all rights, to file with the United States Patent and Trademark Office, the United States Copyright Office (subject to the limitations set forth in Section 6.12 of the DIP Credit Agreement), Copyright Security Agreements, Patent Security Agreements, and Trademark Security Agreements, substantially in the forms attached hereto as Exhibit A, Exhibit B, and Exhibit C, respectively, and such other documents as may reasonably be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the security interest granted by each Grantor in such Grantor’s Patents, Trademarks and Copyrights, and naming such Grantor or the Grantors as debtors and the Collateral Agent as Secured Party, and, where required, executed by such Grantor or Grantors. The security interest provided for herein has also been granted pursuant to the Orders. This Agreement supplements the Orders without in any way diminishing or limiting the effects of the Orders or any Lien, claim or security interest granted thereunder. In the event of a direct conflict between the terms of this Agreement and the Orders, the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” Orders shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereincontrol.
Appears in 1 contract
Sources: Security Agreement (Airspan Networks Holdings Inc.)
Collateral. Subject As collateral security for the payment in full when due (whether at stated maturity, by acceleration or otherwise) of its Secured Obligations, each Obligor hereby pledges and grants to the terms of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, Agent for the benefit of each the Secured Parties as hereinafter provided a security interest in all of such Obligor’s right, title and interest in, to and under all of the Secured Partiesfollowing property and assets, as applicablein each case whether tangible or intangible, a first prioritywherever located, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned by such Obligor or hereafter acquired and whether now existing or arising:hereafter coming into existence (all of the property described in this Section 4, other than the property excluded pursuant to the proviso to this Section 4, being collectively referred to herein as “Collateral”):
(ia) any all Accounts, all Chattel Paper, all Deposit Accounts, all Documents, all General Intangibles (including all Intellectual Property), all Instruments (including all Promissory Notes), all Portfolio Investments, all Pledged Debt, all Pledged Equity Interests, all Investment Property not covered by the foregoing (including all Securities, all Securities Accounts and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls Security Entitlements with respect theretothereto and Financial Assets carried therein, and all Commodity Accounts and Commodity Contracts), all letters of credit and Letter-of-Credit Rights, all Money and all Goods (including Inventory and Equipment), and all Commercial Tort Claims;
(iib) to the extent relating related to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) aboveany Collateral, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect theretoSupporting Obligations;
(iiic) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under related to any of the foregoing Collateral and any and Collateral, all security books, correspondence, credit files, records, invoices and other property with respect papers (including all tapes, cards, computer runs and other papers and documents in the possession or under the control of such Obligor or any computer bureau or service company from time to time acting for such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretoObligor); and
(vd) any and all proceeds Proceeds of any of the foregoing Collateral includingCollateral. PROVIDED, without limitationHOWEVER, all that (1) in no event shall the security interest granted under this Section 4 attach to (and there shall be excluded from the definition of the records of the Guarantor concerning any of the foregoing “Collateral; excluding ”) (A) any funds properly withdrawn from contract, property rights, obligation, instrument or agreement to which an Obligor is a Collateral Account party (or that could be withdrawn pursuant to any of its rights or interests thereunder) if the Credit Agreement if deposited grant of such security interest would constitute or credited to result in either (i) the abandonment, invalidation or unenforceability of any right, title or interest of such Obligor therein or (ii) a Collateral Account) to the extent used, breach or termination pursuant to the terms of the Guarantor’s Governing Documentsof, to purchase Portfolio Investments or a default under, any such contract, property rights, obligation, instrument or agreement (other than Permitted Investments deposited in or credited to the extent that any such accountterms would be rendered ineffective by Section 9-406, 9-407, 9-408 or 9-409 of the Uniform Commercial Code as in effect in the relevant jurisdiction), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) any Excluded Assets, and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or notwithstanding anything to the contrary provided in this Credit Agreement or any other Loan Document (i) Agreement, the term “Collateral” shall not include include, and the Unfunded Capital Commitments of the SOX InsidersObligors shall not be deemed to have granted a security interest in, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, Excluded Assets and (ii2) the term “Collateral” shall not include any Portfolio InvestmentObligors, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition by notice to the Collateral Accounts that will not be considered “Collateral” Agent, exclude from the grant of a security interest provided above in this Section 4 (and such other accounts shall not be subject to control agreements or other restrictions and (vi) exclude from the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not definition of “Collateral”), except any Special Equity Interests designated by the Borrower in connection with reasonable detail to the Collateral Agent in such notice (it being understood that the Borrower may at any Swap Agreement, as provided thereinlater time rescind any such designation by similar notice to the Collateral Agent).
Appears in 1 contract
Sources: Guarantee, Pledge and Security Agreement (FS Investment CORP)
Collateral. Subject to the terms The Collateral consists of the applicable Collateral Documents, to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Agreement, the related financing statements and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit all of each of the Secured PartiesBorrower’s right, as applicable, a first priority, security title and interest and ▇▇▇▇ in and on its interests in to the following, whether now owned or hereafter created, acquired or arising:
(i) : All property listed on any collateral schedule now or in the future annexed to or made a part of this Agreement; All property listed on Annex 1 attached hereto; provided, however, that Lender’s Lien on and security interest in, upon and to the property listed on Annex 1 attached hereto shall not arise until the funding of the GECC Payoff Equipment Advance; All Intellectual Property and all Unfunded Capital Commitments of the Investors, whether now or hereafter committedProceeds, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors Cash Proceeds and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if anyNoncash Proceeds, of such Investors and (z) any and all guaranties of such Investors’ obligations under Intellectual Property; provided, however, for the Constituent Documents and Subscription Agreements including but not limited topurposes hereof, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investmentlicense, Contract or agreement to which any Portfolio Assets Borrower is a party or any Excluded Proceedsof its rights or interests thereunder to the extent, but only to the extent, that such a grant would, under the terms of such license, Contract or agreement or otherwise, result in a breach of the terms of, or constitute a default under any license, Contract or agreement to which any Borrower is a party (iiiother than to the extent that any such term would be rendered ineffective pursuant to the UCC or any other applicable law (including the Bankruptcy Code, 11 U.S.C. Sec. 362(a)) or principles of equity; provided, that immediately upon the term “Collateral” shall not include ineffectiveness, lapse or termination of any collateral posted or received in connection with the Swap Agreementssuch provision, (iv) the Collateral may shall include, and Borrowers shall be subject deemed to Permitted Lienshave granted a security interest in, all such rights and interests as if such provision had never been in effect; and All of each Borrower’s claims, rights and interests in any of the above and all substitutions and exchanges for, additions, attachments, accessories, accessions and improvements to and replacements, products and insurance and other Proceeds of any and all of the foregoing. Notwithstanding the foregoing, upon the payment in full of (va) a Borrower or the Guarantor may maintain all principal, accrued interest and other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except amounts due in connection with any Swap AgreementHard Cost Equipment Advance, as including, without limitation, any applicable prepayment fee, and (b) all principal, accrued interest and other amounts due in connection with any Other Equipment Advances made in conjunction with such Hard Cost Equipment Advance, including, without limitation, any applicable prepayment fee, and provided therein.that no Default has occurred and is continuing, all Financed Equipment financed by such Hard Cost Equipment Advance shall no longer be included in the Collateral. Definitions:
Appears in 1 contract
Sources: Credit and Security Agreement (Discovery Laboratories Inc /De/)
Collateral. Subject to As security for the terms full and punctual payment of the applicable Collateral Documents, to secure the payment Debt and performance of Pledgor’s obligations under the Obligations hereunderLoan Documents and Pledgor’s obligations under this Agreement (whether at stated maturity, pursuant to a Collateral Account Pledgeby required prepayment, a Security Agreementdeclaration, acceleration, demand or otherwise, including without limitation the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §362(a)), whether allowed or allowable as claims) (collectively, the related financing statements “Secured Obligations”), Pledgor hereby grants, pledges, hypothecates, transfers and the other related documentsassigns to Lender a first priority and continuing lien on, the Guarantor shall and first priority security interest, in, and, in furtherance of such grant, pledge, hypothecation, transfer and shall pledge and/or assign by way of assignment, hereby transfers and assigns to Lender as collateral security, to the Administrative Agentall of Pledgor’s right, for the benefit of each of the Secured Partiestitle, as applicableownership, a first priority, security interest and ▇▇▇▇ equity or other interests in and on its interests in to the following, whether now owned or hereafter acquired acquired, now existing or arising:hereafter arising and wherever located (collectively, the “Collateral”):
(ia) any The legal and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors beneficial ownership interests in and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all Equity Interests (hereinafter defined)) in the Persons described in Schedule 1 attached hereto (each, a “Pledged Entity”) as and to the extent of the records pledged Equity Interests described on said Schedule 1 (collectively, the “Pledged Equity”);
(b) all rights, privileges, general intangibles, payments intangibles, voting rights, authority and power arising from its interest in the Pledged Equity;
(c) the capital of Pledgor and any and all profits, losses, Distributions (as defined below), and allocations attributable to the Pledged Equity as well as the proceeds of any Distribution thereof, whether arising under the terms of any Organizational Agreement (as defined below) or otherwise;
(d) all other payments, if any, due or to become due, to Pledgor and all other present or future claims by Pledgor against any Pledged Entity, or in respect of the Guarantor concerning Pledged Equity, under or arising out of (i) any Organizational Agreement, (ii) monies loaned or advanced, for services rendered or otherwise, (iii) any other contractual obligations, commercial tort claims, supporting obligations, damages, insurance proceeds, condemnation awards or other amounts due to Pledgor from any Pledged Entity or with respect to the Pledged Equity;
(e) Pledgor’s claims, rights, powers, privileges, authority, options, security interests, liens and remedies, if any, under or arising out of the ownership of the Pledged Equity;
(f) to the extent permitted by applicable law, Pledgor’s rights, if any, in any Pledged Entity pursuant to any Organizational Agreement, or at law, to exercise and enforce every right, power, remedy, authority, option and privilege of Pledgor relating to the Pledged Equity, including without limitation, the right to (i) execute any instruments and to take any and all other action on behalf of and in the name of Pledgor in respect of the Pledged Equity, (ii) exercise any and all voting, consent and management rights of Pledgor in or with respect to any Pledged Entity, (iii) exercise any election (including, but not limited to, election of remedies) or option or to give or receive any notice, consent, amendment, waiver or approval with respect to any Pledged Entity, (iv) enforce or execute any checks, or other instruments or orders of any Pledged Entity, and (v) file any claims and to take any action in connection with any of the foregoing, together with full power and authority to demand, receive, enforce or collect any of the foregoing Collateral; excluding or any property of any Pledged Entity;
(Ag) all Investment Property (as such term is defined in Section 9-102 of the UCC (as defined below) issued by or relating to any funds properly withdrawn from a Collateral Account (Pledged Entity, or that could be withdrawn pursuant otherwise relating to the Credit Agreement if deposited Pledged Equity;
(h) all additional Equity Interests or credited other property, securities, or assets now existing or hereafter acquired by Pledgor relating to a Collateral Account) Pledged Entity, including, without limitation, as a result of any consolidation, combinations, mergers, reorganizations, acquisitions, exchange offers, recapitalizations of any type, contributions to capital, splits, spin-offs, or similar actions or the exercise of options or other rights relating to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document Pledged Equity;
(i) To the term “Collateral” shall extent not include the Unfunded Capital Commitments otherwise included: all assets and personal property of the SOX InsidersPledgor, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitmentswithout limitation, all of Pledgor’s accounts, equipment, fixtures, inventory, goods, accessions, software, general intangibles, payment intangibles, deposit accounts, documents, instruments, money, chattel paper (whether electronic or intangible), investment property, letters of credit, letters of credit rights, supporting obligations, commercial tort claims, oil, gas and mineral rights (whether before extraction or as extracted collateral);
(j) all partnership certificates, member certificates, stock certificates, or any other interests instrument, note, chattel paper or certificate (including, without limitation, all “certificated securities” within the meaning of Section 8-102 of the SOX InsidersUCC) (whether or not qualifying as Investment Property) representing the Pledged Equity in any Pledged Entity and any interest of Pledgor in the entries on the books of any financial intermediary pertaining to such certificates or writings, if anyand all options and warrants for the purchase of such Equity Interests now or hereafter held in the name of Pledgor (collectively, unless so elected “Certificated Securities”), and all Certificated Securities in any Pledged Entity from time to time acquired by Pledgor in any manner, and any interest of Pledgor in the Guarantor entries on the books of any financial intermediary pertaining to such Certificated Securities, and all securities convertible into and options, warrants, dividends, cash, instruments and other rights and options from time to time received, receivable or otherwise distributed in its discretionrespect of or in exchange for any or all of such Certificated Securities (including all rights to request or cause the issuer thereof to register any or all of the Collateral under federal and state securities laws to the maximum extent possible under any agreement for such registration rights), and all put rights, tag-along rights or other rights pertaining to the sale or other transfer of such Collateral, together in each case with all right under any Organizational Agreements pertaining to such rights; and
(k) (i) all “proceeds” (as such term is defined in Section 9-102 of the UCC) of any or all of the foregoing (whether cash or non-cash proceeds, including insurance proceeds), (ii) whatever is receivable or received when any of the term “Collateral is sold, collected, exchanged or otherwise disposed of, whether such disposition is voluntary or involuntary, and includes, without limitation, all rights to payment, including return premiums, with respect to any insurance relating thereto and also includes all interest, dividends and other property receivable or received on account of any of the Collateral or proceeds thereof, and in any event, shall include all Distributions or other income from any of the Collateral” shall not include any Portfolio Investment, any Portfolio Assets all collections thereon or any Excluded Proceedsall Distributions with respect thereto, and (iii) all proceeds, products, accessions, rents, profits, income, benefits, substitutions and replacements of and to any of the term “Collateral” shall not include any collateral posted or received . The inclusion of proceeds in connection with the Swap Agreements, (iv) the Collateral may be subject does not authorize Pledgor to Permitted Lienssell, (v) a Borrower dispose of or the Guarantor may maintain other bank accounts or securities accounts in addition to otherwise use the Collateral Accounts that will in any manner not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinspecifically authorized hereby.
Appears in 1 contract
Sources: Pledge and Security Agreement (Global Income Trust, Inc.)
Collateral. Subject to the terms To secure all of the applicable Collateral Documents, present and future obligations and indebtedness of Client to secure the payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security Trinity under this Agreement, the related financing statements and the any other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, whether now owned or hereafter acquired or arising:
(i) any and all Unfunded Capital Commitments of the Investors, whether agreement now or hereafter committedexisting between Client and Trinity, including but not limited or otherwise howsoever arising or incurred, regardless whether direct or indirect, absolute or contingent, arising by operation of law or by agreement, Client hereby irrevocably and unconditionally grants and gives to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors Trinity a general and continuing first and senior lien and security interest in and to issue Investor Capital Calls with respect thereto;
(ii) all accounts and invoices and their proceeds purchased by Trinity pursuant to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral this Agreement, and a general lien in clause (i) aboveClient's other assets including, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, all instruments, documents, chattel paper, general intangibles, inventory, goods, equipment, and fixtures which are now existing and owned by Client and in each case all which will hereafter arise or be acquired by Client; together with all other grants and pledges of clauses (x)security heretofore or hereafter given; and in all reserves, (y) funds, moneys, property, goods, accounts, instruments, documents, chattel paper and (z)general intangibles now existing and hereafter arising, in which Client now has or hereafter acquires any interest whatsoever and which are or come into the possession of Trinity or are or may hereafter be due or payable to Client by Trinity; in all representations, warranties, covenants proceeds of all of the foregoing; and other agreements of such Investors or guarantors contained therein, any in all books and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent records evidencing or supporting obligations under pertaining, in whole or in part, to any of the foregoing Collateral and any and (all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of herein collectively referred to as the records of the Guarantor concerning any of the foregoing "Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”"). Client shall execute and deliver to Trinity such Uniform Commercial Code financing statements in form and substance required by Trinity, as Trinity shall require to perfect and maintain Trinity's first priority security interest in the Collateral. Notwithstanding the foregoing or anything to the contrary in this Agreement, Trinity hereby agrees to waive any of its security interest or subordinate its first lien security interest, at Client's request, on certain specific equipment to be purchased by Client and sold to one of Client's account debtors in the future from IBM with defined serial numbers and related proceeds thereof ("IBM Equipment") to IBM Credit Agreement Corporation to permit Client or its account debtor to receive certain Purchase Money Security Interest financing from IBM Credit Corporation in the future on said IBM Equipment, provided that there are no advances outstanding against said specific IBM Equipment or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited Accounts relating to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinsaid IBM Equipment from Trinity.
Appears in 1 contract
Sources: Accounts Receivable Purchase and Security Agreement (Applied Intelligence Group Inc)
Collateral. Subject to the terms of the applicable Collateral Documents, to To secure the full and complete payment and performance of the Obligations hereunder, pursuant to a Collateral Account Pledge, a Security AgreementObligations, the related financing statements Borrower shall execute and deliver or cause to be executed and delivered the documents described below covering the property and collateral described in this Section 6.1 (which, together with any other related documentsproperty and collateral which may now or hereafter secure the Obligations or any part thereof, is sometimes herein called the Guarantor "Collateral"):
(a) The Borrower shall grant, and shall pledge and/or assign by way of security, grant to the Administrative Agent, for the pro rata benefit of each of the Secured Parties, as applicableBanks, a first priority, priority security interest in all of the Borrower's personal property, including without limitation all of its accounts, accounts receivable, equipment, furniture, fixtures, inventory, chattel paper, documents, instruments (including intercompany notes executed by a Foreign Subsidiary or Foreign Affiliate in favor of the Borrower pursuant to Section 7.1(k) hereof) and ▇▇▇▇ in and on its interests in the followinggeneral intangibles, whether now owned or hereafter acquired or arising:
(i) any acquired, and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors products and to issue Investor Capital Calls with respect thereto;
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited thereto; and
(v) any and all proceeds of any of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent usedthereof, pursuant to the terms Borrower Security Agreement.
(b) The Borrower shall cause each present and future Guarantor to grant to the Agent, for the pro rata benefit of the Banks, a first priority security interest in all personal property of such Guarantor’s Governing Documents, including without limitation all accounts, accounts receivable, equipment, furniture, fixtures, inventory, chattel paper, documents, instruments and general intangibles of each Guarantor, whether now owned or hereafter acquired, and all products and proceeds thereof, pursuant to purchase Portfolio Investments the Guarantor Security Agreements.
(other than Permitted Investments deposited c) The Borrower shall grant to the Agent, for the pro rata benefit of the Banks, a first priority security interest in (a) all of the Borrower's shares of Capital Stock of each of its Domestic Subsidiaries, whether now owned or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreementhereafter acquired, and (Bb) all (but in any event not to exceed 65%) of the proceeds issued and outstanding shares of such withdrawn funds (the items in (A) Capital Stock of each of its direct Foreign Subsidiaries and (B)Foreign Affiliates, collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything pursuant to the contrary in this Credit Borrower Pledge Agreement.
(d) The Borrower shall cause each of its direct Foreign Subsidiaries (including Igienica Difusion Inc. Ltd. at such time as it becomes a Restricted Subsidiary hereunder) to execute a Negative Pledge Agreement with respect to the Capital Stock of their Subsidiaries, whether now owned or any other Loan Document hereafter acquired.
(ie) the term “Collateral” The Borrower shall not include the Unfunded Capital Commitments of the SOX Insidersexecute and cause to be executed and cause each Guarantor to execute and cause to be executed, such further documents and instruments, including but not limited to without limitation Uniform Commercial Code financing statements, as the right to draw down Investor Capital Contributions on such Unfunded Capital CommitmentsAgent, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its sole discretion, (ii) deems necessary or desirable to create, evidence, preserve, and perfect its liens and security interest in the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided therein.
Appears in 1 contract
Sources: Credit Agreement (Drypers Corp)
Collateral. Subject to the terms Each Security Interest herein granted shall secure all Secured Obligations, and is in all of the applicable Collateral DocumentsGrantor’s right, to secure the payment title and performance of the Obligations hereunderinterest in and to, pursuant to a Collateral Account Pledge, a Security Agreementor otherwise with respect to, the related financing statements following property and the other related documents, the Guarantor shall grant, and shall pledge and/or assign by way of security, to the Administrative Agent, for the benefit of each of the Secured Parties, as applicable, a first priority, security interest and ▇▇▇▇ in and on its interests in the following, assets whether now owned or existing or hereafter acquired or arising:arising and regardless of where located (collectively, the “Collateral”):
(i) any and all Unfunded Capital Commitments of the Investors, whether now or hereafter committed, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect thereto;
Nasdaq Collateral Shares; (ii) to the extent relating to the Unfunded Capital Commitments all dividends, shares, securities, cash, instruments, moneys or property (A) representing a dividend, distribution or return of the Investors constituting Collateral capital in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, respect of such Investors and (z) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited to, in each case of clauses (x), (y) and (z), any and all representations, warranties, covenants and other agreements of such Investors or guarantors contained therein, any and all duties and obligations of such Investors or guarantors thereunder and any and all rights to compel performance and enforce the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral (including, without limitation, any Dividend thereon), (B) resulting from a split-up (including, without limitation, a split-off), revision, reclassification, recapitalization or other similar change with respect to any of the Nasdaq Shares serving as collateral hereunder, (C) otherwise received in exchange for or converted from any of the Nasdaq Shares serving as collateral hereunder and any and all security and other property subscription warrants, rights or options issued to the holders of, or otherwise in respect of, any of such Nasdaq Shares or (D) in connection with a spin-off with respect to such CollateralNasdaq Shares; and (iii) in the event of any Merger Event in which Nasdaq, Inc. (the “Company”) is not the surviving entity, all shares of each class of the capital stock of the successor entity formed by or resulting from such Merger Event received with respect to the Nasdaq Shares serving as collateral hereunder and any other consideration that is exchanged for such Nasdaq Shares or into which such Nasdaq Shares are converted;
(ivb) each Collateral AccountAccount (as defined below), any Cash, Cash Equivalent Investments, securities (including, without limitation, the Nasdaq Collateral Shares), general intangibles, investment property, financial assets and other property that may from time to time, in each case, be deposited, credited, held or carried in such Collateral Accounts or that is delivered to or in possession or control of the Security Agent or the Custodian or any of the Security Agent’s or the Custodian’s agents pursuant to this Security Agreement or the Margin Loan Agreement; all “security entitlements” as defined in §8-102(a)(17) of the UCC (as defined below) with respect to any of the foregoing and all income and profits on any of the foregoing, all dividends, interest and other payments and distributions with respect to any of the foregoing, all other rights and privileges appurtenant to any of the foregoing, including but not limited to any voting rights and all funds any redemption rights, and financial assets on deposit therein or credited thereto; and
(v) any substitutions for any of the foregoing and all any proceeds of any of the foregoing Collateral includingforegoing, without limitation, in each case whether now existing or hereafter arising; and
(1) all Proceeds (as defined below) of the records of the Guarantor concerning any of Collateral described in the foregoing Collateral; excluding clauses (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (Aa) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing b) and (2) any dividends or anything to the contrary other distributions in this Credit Agreement respect of any shares of capital stock issued by Company in respect of any Nasdaq Collateral Shares or other securities constituting Collateral or any securities or other Loan Document (i) the term “property distributed in respect of or exchanged for any Nasdaq Collateral Shares or other securities constituting Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or into which any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the such Nasdaq Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements Shares or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”securities are converted, except in connection with any Swap Agreement, as provided thereinmerger or similar event or otherwise.
Appears in 1 contract
Collateral. Subject to As collateral security for the terms of the applicable Collateral Documents, to secure the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of all Obligations and in order to induce the Obligations hereunderBank to enter into the Credit Agreement and, pursuant to a Collateral Account Pledgethereto, a Security Agreement, make the related financing statements Loans and the other related documentsAdvances described therein, the Guarantor shall granthereby pledges, hypothecates, conveys, assigns, mortgages, transfers, delivers, and shall pledge and/or assign by way of security, grants to the Administrative Agent, for the benefit of each Bank a first lien security interest in all of the Secured PartiesGuarantor's right, as applicable, a first priority, security title and interest and ▇▇▇▇ in and on its interests in to the following, whether now owned or hereafter acquired or arising:following (all of which being hereinafter collectively called the "Collateral"):
(i) the Government Securities listed on Schedule I attached hereto and incorporated herein by reference (the "Schedule of Collateral") and (ii) any and all Unfunded Capital Commitments of the Investorsother Government Securities which may be set forth on any amendment, whether now modification or hereafter committed, including but not limited supplement to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments from such Investors and to issue Investor Capital Calls with respect theretoSchedule of Collateral (collectively, the "Pledged Collateral");
(ii) to the extent relating to the Unfunded Capital Commitments of the Investors constituting Collateral in clause (i) above, (x) the Constituent Documents, (y) the Subscription Agreements and Side Letters, if any, of such Investors and (zb) any and all guaranties of such Investors’ obligations under the Constituent Documents and Subscription Agreements including but not limited toother moneys, in each case of clauses (x)securities, (y) and (z)drafts, any and all representations, warranties, covenants notes and other agreements property of such Investors any kind of the Guarantor, now or guarantors contained thereinhereafter held or received by or in transit to the Bank from or for the Guarantor, any and all duties and obligations or which may now or hereafter be in the possession of such Investors the Bank, or guarantors thereunder as to which the Bank may now or hereafter control possession, by documents of title or otherwise, whether for safekeeping, custody, pledge, transmission, collection or otherwise, and any and all deposits, general or special, balances, sums, proceeds and credits of the Guarantor, and all rights to compel performance and enforce remedies which the provisions thereof against such Investors or guarantors and otherwise pursue remedies against such Investors or guarantors Guarantor might exercise with respect thereto;
(iii) any and all agreements, instruments and other documents of every kind or description to the extent evidencing or supporting obligations under any of the foregoing Collateral and any and all security and other property with respect to such Collateral;
(iv) each Collateral Account, including but not limited to any and all funds and financial assets on deposit therein or credited theretofor this Agreement; and
(vc) any all proceeds, including Payments and all proceeds of any Redemption Proceeds (as hereinafter defined), of the foregoing Collateral including, without limitation, all of the records of the Guarantor concerning any of the foregoing Collateral; excluding (A) any funds properly withdrawn from a Collateral Account (or that could be withdrawn pursuant to the Credit Agreement if deposited or credited to a Collateral Account) to the extent used, pursuant to the terms of the Guarantor’s Governing Documents, to purchase Portfolio Investments (other than Permitted Investments deposited in or credited to any such account), to make payments or distributions to Investors in accordance with the terms hereof or for any other purpose permitted under the Guarantor’s Governing Documents and this Credit Agreement, and (B) the proceeds of such withdrawn funds (the items in (A) and (B), collectively “Excluded Proceeds”). Notwithstanding the foregoing or anything to the contrary in this Credit Agreement or any other Loan Document (i) the term “Collateral” shall not include the Unfunded Capital Commitments of the SOX Insiders, including but not limited to the right to draw down Investor Capital Contributions on such Unfunded Capital Commitments, or any other interests of the SOX Insiders, if any, unless so elected by the Guarantor in its discretion, (ii) the term “Collateral” shall not include any Portfolio Investment, any Portfolio Assets or any Excluded Proceeds, (iii) the term “Collateral” shall not include any collateral posted or received in connection with the Swap Agreements, (iv) the Collateral may be subject to Permitted Liens, (v) a Borrower or the Guarantor may maintain other bank accounts or securities accounts in addition to the Collateral Accounts that will not be considered “Collateral” and such other accounts shall not be subject to control agreements or other restrictions and (vi) the Administrative Agent and the Secured Parties shall not have any Lien on any property that is not “Collateral”, except in connection with any Swap Agreement, as provided thereinforegoing.
Appears in 1 contract
Sources: Pledge Agreement (Careadvantage Inc)