Common use of Creation and Perfection of Security Interest Clause in Contracts

Creation and Perfection of Security Interest. (a) This Agreement and the Other Documents are effective to create in favor of Agent, for the ratable benefit of Lenders and the other holders of the Obligations, a legal, valid and enforceable security interest in the Collateral identified therein, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law), and this Agreement and the Other Documents shall create a fully perfected Lien on, and security interest in, all right, title and interest of the obligors thereunder in such Collateral, in each case prior and superior in right to any other Lien (other than Permitted Encumbrances) (i) with respect to any such Collateral that is a “security” (as such term is defined in the Uniform Commercial Code) and is evidenced by a certificate, when such Collateral is delivered to Agent with duly executed stock powers with respect thereto, (ii) with respect to any such Collateral that is a “security” (as such term is defined in the Uniform Commercial Code) but is not evidenced by a certificate, when UCC financing statements in appropriate form are filed in the appropriate filing offices in the jurisdiction of organization of the pledgor or when “control” (as such term is defined in the Uniform Commercial Code) is established by Agent over such interests in accordance with the provision of Section 8-106 of the Uniform Commercial Code, or any successor provision, (iii) with respect to any such Collateral that is not a “security” (as such term is defined in the Uniform Commercial Code), when UCC financing statements in appropriate form are filed in the appropriate filing offices in the jurisdiction of organization of the pledgor (to the extent such security interest can be perfected by filing under the Uniform Commercial Code) and (iv) with respect to any such Collateral that is Intellectual Property, when intellectual property security agreements are recorded with the United States Patent and Trademark Office and the United States Copyright Office, together with the financing statements set forth in clause (iii). (b) Each Credit Party shall take all action that may be necessary or that Agent may request in its Permitted Discretion, so as at all times to maintain the validity, perfection, enforceability and priority of Agent’s security interest in and Lien on the Collateral or to enable Agent to protect, exercise or enforce its rights hereunder and in the Collateral including, but not limited to, (i) promptly discharging all Liens other than Permitted Encumbrances, (ii) using commercially reasonable efforts to obtain Lien Waiver Agreements to the extent required under Section 4.5(c), (iii) delivering to Agent, endorsed or accompanied by such instruments of assignment as Agent may specify, and stamping or marking, in such manner as Agent may specify, any and all chattel paper, instruments (other than those deposited for collection), letters of credit and advices thereof and documents evidencing or forming a part of the Collateral, in each case with a face value in excess of $250,000, individually and in the aggregate, (iv) reserved, and (v) executing and delivering financing statements, Control Agreements, instruments of pledge, mortgages, notices and assignments, in each case in form and substance satisfactory to Agent in its Permitted Discretion, relating to the creation, validity, perfection, maintenance or continuation of Agent’s security interest and Lien under the Uniform Commercial Code or other Applicable Law. By its signature hereto, each Credit Party hereby authorizes Agent to file against such Credit Party, one or more financing, continuation or amendment statements pursuant to the Uniform Commercial Code in form and substance satisfactory to Agent (which statements may have a description of collateral which is broader than that set forth herein, including without limitation a description of Collateral as “all assets” and/or “all personal property” of any Credit Party). All charges, expenses and fees Agent may incur in doing any of the foregoing, and any local filing, recording, documentary or similar taxes relating thereto, shall be charged to Borrowers’ Account as an Advance and added to the Obligations, or, at Agent’s option, shall be paid to Agent for its benefit and for the ratable benefit of Lenders immediately upon demand. Notwithstanding the foregoing, no Credit Party shall be required to undertake any Excluded Perfection Action.

Creation and Perfection of Security Interest. (a) This Agreement and the Other Documents are effective to create in favor of Agent, for the ratable benefit of Lenders and the other holders of the Obligations, a legal, valid and enforceable security interest in the Collateral identified therein, except to the extent the enforceability thereof may be limited by applicable Debtor Relief Laws affecting creditors’ rights generally and by equitable principles of law (regardless of whether enforcement is sought in equity or at law), and this Agreement and the Other Documents shall create a fully perfected Lien on, and security interest in, all right, title and interest of the obligors thereunder in such Collateral, in each case prior and superior in right to any other Lien (other than Permitted Encumbrances) (i) with respect to any such Collateral that is a “security” (as such term is defined in the Uniform Commercial Code) and is evidenced by a certificate, when such Collateral is delivered to Agent with duly executed stock powers with respect thereto, (ii) with respect to any such Collateral that is a “security” (as such term is defined in the Uniform Commercial Code) but is not evidenced by a certificate, when UCC financing statements in appropriate form are filed in the appropriate filing offices in the jurisdiction of organization of the pledgor or when “control” (as such term is defined in the Uniform Commercial Code) is established by Agent over such interests in accordance with the provision of Section 8-106 of the Uniform Commercial Code, or any successor provision, (iii) with respect to any such Collateral that is not a “security” (as such term is defined in the Uniform Commercial Code), when UCC financing statements in appropriate form are filed in the appropriate filing offices in the jurisdiction of organization of the pledgor (to the extent such security interest can be perfected by filing under the Uniform Commercial Code) and (iv) with respect to any such Collateral that is Intellectual Property, when intellectual property security agreements are recorded with the United States Patent and Trademark Office and the United States Copyright Office, together with the financing statements set forth in clause (iii). (b) Each Credit Party Borrower shall take all action that may be necessary or desirable, or that Agent may request in its Permitted Discretionrequest, so as at all times to maintain the validity, perfection, enforceability and priority of Agent’s security interest in and Lien on the Collateral or to enable Agent to protect, exercise or enforce its rights hereunder and in the Collateral Collateral, including, but not limited to, (i) promptly discharging all Liens other than Permitted Encumbrances, (ii) using use commercially reasonable efforts to obtain Lien Waiver Agreements to the extent required under Section 4.5(c)Agreements, (iii) delivering to Agent, endorsed or accompanied by such instruments of assignment as Agent may specify, and stamping or marking, in such manner as Agent may specify, any and all chattel paperChattel Paper, instruments (other than those deposited for collection)instruments, letters of credit and advices thereof and documents evidencing or forming a part of the Collateral, in each case with a face value in excess of $250,000, individually and in the aggregate, (iv) reservedentering into warehousing, lockbox and other custodial arrangements satisfactory to Agent, and (v) executing and delivering financing statements, Control Agreementscontrol agreements, instruments of pledge, mortgages, notices and assignments, in each case in form and substance satisfactory to Agent in its Permitted DiscretionAgent, relating to the creation, validity, perfection, maintenance or continuation of Agent’s security interest and Lien under the Uniform Commercial Code or other Applicable Law. By its signature hereto, each Credit Party Borrower hereby authorizes Agent to file against such Credit PartyBorrower, one or more financing, continuation or amendment statements pursuant to the Uniform Commercial Code in form and substance satisfactory to Agent (which statements may have a description of collateral which is broader than that set forth herein, including without limitation a description of (a) describe the Collateral as “all assetspersonal property of debtor” and/or or “all personal propertyassets of debtor” or words of similar effect, (b) describe the Collateral as being of equal or lesser scope or with greater detail, or (c) contain any Credit Partyinformation required by part 5 of Article 9 of the Uniform Commercial Code for the sufficiency thereof or for filing office acceptance). Each Borrower also hereby ratifies any and all financing statements or amendments previously filed by Agent in any jurisdiction. Each Borrower acknowledges that it is not authorized to file any financing statement or amendment or termination statement with respect to any financing statement filed in connection with this Agreement without the prior written consent of Agent, subject to such Borrower’s rights under Section 9-509(d)(2) of the Uniform Commercial Code. All charges, expenses and fees Agent may incur in doing any of the foregoing, and any local filing, recording, documentary or similar taxes relating thereto, shall be charged to Borrowers’ Account as an Advance and added to the Obligations, or, at Agent’s option, shall be paid to Agent for its benefit and for the ratable benefit of Lenders immediately upon demand. Notwithstanding anything in this Section 4.2 to the foregoingcontrary, no Credit Party shall Borrowers will not be required to undertake any Excluded Perfection Actionhave the Agent’s Lien noted on the certificates of title for its rolling stock unless an Event of Default has occurred and is continuing.