Excluded Property. Notwithstanding anything in Section 2.1 or elsewhere in this Agreement to the contrary, there is specifically excluded from the Security Interest, and the term Collateral shall not include: (i) any Equipment or Goods that is subject to a "purchase money security interest," as such term is now or hereafter defined in the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) prohibits the creation by the Grantor of a security interest therein, unless the holder thereof has consented to the creation of such a security interest; (ii) any lease, license, contract, property rights or agreement to which Grantor is a party or any of its rights or interests thereunder, or assets related thereto, if and for so long as the grant of such security interest or lien shall constitute or result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of the Grantor therein or (B) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement of any relevant jurisdiction or any other applicable law (including the U. S. Bankruptcy Code) or principles of equity), provided, however, that such security interest or lien shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement, or such asset related thereto, that does not result in any of the consequences specified in (A) or (B) above; (iii) any Inventory owned by the Grantor that contains or utilizes a patent, trademark or copyright the use of which has been licensed to Grantor under a license described under clause (ii), which license prohibits Liens on such Inventory, provided, however, that such security interest or lien shall attach to such Inventory immediately at such time as the condition prohibiting such Lien shall be waived by the licensor of such license or otherwise remedied; and (iv) any Intellectual Property.
Appears in 1 contract
Sources: Pledge and Security Agreement (Igi Laboratories, Inc)
Excluded Property. Notwithstanding anything the foregoing, in Section 2.1 or elsewhere in this Agreement no event will the Collateral include Excluded Property; provided, however, that all proceeds of Excluded Property will be Collateral to the contrary, there is specifically excluded from extent that the Security Interest, and the term Collateral shall proceeds are not include: themselves Excluded Property. “Excluded Property” means (i1) any Equipment or Goods that is subject to a "purchase money security interest," as such term is property in which the Debtor now or hereafter defined has rights in the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) prohibits the creation by the Grantor of a security interest thereinmay not be granted by the Debtor in such property as a matter of applicable law, unless rule or regulation, or under the holder thereof has consented terms of the property or the governing document applicable thereto, after giving effect to the creation of such a security interest; UCC (ii) any lease, license, contract, property rights or agreement to which Grantor is a party or any of its rights successor provision or interests thereunder, or assets related thereto, if and for so long as the grant of such security interest or lien shall constitute or result in (Aprovisions) the abandonment, invalidation or unenforceability of any right, title or interest of the Grantor therein or (B) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement of any relevant jurisdiction or any other applicable law (including the U. S. Bankruptcy Code) Code of the United States or principles of equity), providedwithout the consent of one or more parties thereto other than any Loan Party, however, that but only for so long as such security interest or lien shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied consent has not been obtained; (2) assets subject to capital leases and purchase money financings to the extent severablesuch capital leases and purchase money financings are permitted under the Loan Agreement and prohibit the granting of a Lien; (3) any application for registration of a trademark, service ▇▇▇▇ or other ▇▇▇▇ filed with the PTO on an intent-to-use basis to the extent an assignment thereof would void or invalidate such application, until such time (if any) as a verified statement of use (or the equivalent) for such trademark, service ▇▇▇▇ or other ▇▇▇▇ is filed with and accepted by the PTO, at which time such trademark, service ▇▇▇▇ or other ▇▇▇▇ shall attach immediately to any portion of such lease, license, contract, property rights or agreement, or such asset related thereto, that does not result in any automatically become part of the consequences specified in (A) or (B) aboveCollateral and subject to the security interest pledged; (iii4) escrow accounts and trust accounts, in each case entered into in the ordinary course of business and consistent with prudent business judgment (as determined by the Debtor in good faith), where the applicable Debtor holds the funds exclusively for the benefit of an unaffiliated third party; (5) any Inventory owned by account that is used for the Grantor that contains or utilizes a patentsole purpose of making payroll and withholding tax payments related thereto and other employee wage and benefits payments and accrued and unpaid employee compensation payments (including salaries, trademark or copyright the use of which has been licensed to Grantor under a license described under clause (iiwages, benefits and expense reimbursements, 401(k) and other retirement plans and employee benefits, including rabbi trusts for deferred compensation and health care benefits), which license prohibits Liens on such Inventory, provided, however, that such security interest or lien shall attach to such Inventory immediately at such time as the condition prohibiting such Lien shall be waived by the licensor of such license or otherwise remedied; and (iv6) any Intellectual Propertyaccount that is used for the sole purpose of paying taxes, including sales taxes. The accounts referred to in the preceding clauses (4), (5), and (6) are referred to collectively as the “Excluded Accounts.” Debtor warrants that Debtor is an organization registered under the laws of New York. Debtor warrants that its chief executive office (or principal residence, if applicable) is located at the address set forth in the introductory paragraph hereof. Debtor warrants that the Collateral (except goods in transit) is located or domiciled at the following additional address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Appears in 1 contract
Excluded Property. Notwithstanding anything to the contrary set forth in Section 2.1 5.1 above, the types or elsewhere items of Collateral described in this Agreement to the contrary, there is specifically excluded from the Security Interest, and the term Collateral such Section shall not include:
(a) any rights or interests in any contract, lease, permit, license, charter or license agreement covering real or personal property, as such, if under the terms of such contract, lease, permit, license, charter or license agreement, or applicable law with respect thereto, the valid grant of a security interest or lien therein to Agent is prohibited and such prohibition has not been or is not waived or the consent of the other party to such contract, lease, permit, license, charter or license agreement has not been or is not otherwise obtained or under applicable law such prohibition cannot be waived; PROVIDED, THAT, the foregoing exclusion shall in no way be construed (i) to apply if any such prohibition is unenforceable under Sections 9-406, 9-407 or 9-408 of the UCC or other applicable law or (ii) so as to limit, impair or otherwise affect Agent's unconditional continuing security interests in and liens upon any rights or interests of Borrower in or to monies due or to become due under any such contract, lease, permit, license, charter or license agreement (including any Receivables);
(b) any Equipment acquired after the date hereof which is subject to a purchase money lien or purchase money security interest (including Capital Leases) permitted under Section 9.8 hereof if: (i) the valid grant of a security interest or lien to Agent in such item of Equipment is prohibited by the terms of the agreement between Borrower and the holder of such 45 purchase money lien or security interest or under applicable law and such prohibition has not been or is not waived, or the consent of the holder of the purchase money mortgage or other purchase money lien or security interest has not been or is not otherwise obtained, or under applicable law such prohibition cannot be waived and (ii) the purchase money lien or security interest on such item of Equipment is or shall become valid and perfected;
(c) the Capital Stock of the Foreign Subsidiaries in excess of sixty-six (66%) percent of all of the issued and outstanding shares of Capital Stock of such Subsidiary, provided, that, for purposes of the laws of Australia and any Equipment or Goods that is State thereof, Section 5.1 shall not be deemed to grant a security interest in any of the shares of Capital Stock of AEP Industries (Australia) Pty Ltd. to the extent such shares are subject to the pledge and security interest of Agent pursuant to the Pledge and Security Agreement by Borrower in favor of Agent with respect thereto (and if for any reason this Agreement were deemed to create a "purchase money security interest," interest in any of such shares of AEP Industries (Australia) Pty Ltd. as result of such shares not being subject to the Pledge and Security Agreement, then the amount of the Obligations secured by the shares will be limited to the Limitation Amount, as such term is now or hereafter defined in the UCC, which Pledge and Security Agreement by Borrower with respect thereto).
(x) constitutes a Permitted Lien under the Credit Agreement and (y) prohibits the creation by the Grantor of a security interest therein, unless the holder thereof has consented to the creation of such a security interest; (ii) any lease, license, contract, property rights or agreement to which Grantor is a party or any of its rights or interests thereunder, or assets related thereto, if and for so long as the grant of such security interest or lien shall constitute or result in (Ad) the abandonment, invalidation or unenforceability of any right, title or interest of the Grantor therein or (B) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement of any relevant jurisdiction or any other applicable law (including the U. S. Bankruptcy Code) or principles of equity), provided, however, that such security interest or lien shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement, or such asset related thereto, that does not result in any of the consequences specified in (A) or (B) above; (iii) any Inventory owned by the Grantor that contains or utilizes a patent, trademark or copyright the use of which has been licensed to Grantor under a license described under clause (ii), which license prohibits Liens on such Inventory, provided, however, that such security interest or lien shall attach to such Inventory immediately at such time as the condition prohibiting such Lien shall be waived by the licensor of such license or otherwise remedied; and (iv) any Intellectual PropertyWrightsville Fixed Assets.
Appears in 1 contract
Excluded Property. Notwithstanding anything The security interest granted under Section 2.01 shall not attach to (a) any interests of any of the Grantors in Section 2.1 or elsewhere the joint ventures set forth on Schedule V attached hereto and any subsequent joint ventures in this Agreement which the Grantors invest, but only to the contrary, there is specifically excluded from extent that applicable law or the Security Interest, and organizational documents (including other applicable agreements among the term Collateral shall not include: investors in such joint venture) with respect to any such joint venture (i) any Equipment or Goods that is subject to a "purchase money security interest," as such term is now or hereafter defined in do not permit the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) prohibits the creation by the Grantor grant of a security interest therein, unless the holder thereof has consented to the creation in such interest or an assignment of such a security interest; interest or (ii) require the consent of any third party to permit such grant of a security interest or assignment (and such consent has not been granted), it being understood that as to any such joint venture where the applicable organizational documents (including other agreements among the investors in such joint venture) permit such a grant of a security interest or assignment without the consent of any third party and in accordance with applicable law, such interest in such joint venture shall be included in the Collateral (subject to clause (c) and clause (j) below) and the applicable Grantor shall cause the related certificates, if any, for such joint venture to be delivered to the Collateral Agent or the First Lien Collateral Agent within ninety (90) days from the Closing Date (or such longer period as the Collateral Agent or the First Lien Collateral Agent may agree), it being further understood that, in any event, the grant of the security interest described in Section 2.01 shall extend to the proceeds (of any kind) of any disposition of any such joint venture interests and all distributions thereon to the extent that the assignment of such proceeds or distributions are not prohibited, (b) applications filed in the USPTO to register trademarks or service marks on the basis of any Grantor’s “intent to use” such trademarks or service marks unless and until the filing of a “Statement of Use” or “Amendment to Allege Use” has been filed and accepted by the USPTO, whereupon such applications shall be automatically subject to the lien granted herein and deemed included in the Collateral, (c) any of the Securities in each foreign subsidiary of a Grantor in excess of sixty-five percent (65%) of the issued and outstanding Securities of such foreign subsidiary which to the extent applicable shall include any issued and outstanding Securities of such foreign subsidiary pledged under the Pledge Agreement so that collectively no more than 65% of such issued and outstanding stock is pledged notwithstanding the delivery by any Grantor to the Collateral Agent of Securities representing in excess of such percentage, (d) the Excluded Accounts, all Financial Assets credited to such Excluded Accounts and all Security Entitlements held in such Excluded Accounts, (e) the Grantors’ right, title or interest in or to any property or rights in and to which the Collateral Agent has been granted a perfected security interest pursuant to the Second Lien Aircraft Mortgage, the Second Lien SGR Security Agreement or the Second Lien Pledge Agreement, (f) any rights or property acquired under or in connection with a lease, license, contract, healthcare insurance receivable, property rights agreement or agreement to which Grantor is a party or any of its rights or interests thereunderlicense, or assets related thereto, if and for so long as the grant of such a security interest in such rights or lien property shall (i) constitute or result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of the any Grantor therein or (Bii) require the consent of a third party or constitute or result in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, healthcare insurance receivable, property rights agreement or agreement license (other than to the extent that any restriction on such assignment would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the U. S. Bankruptcy Code) or principles of equity), provided, however, provided that such security interest or lien the proceeds therefrom shall attach immediately at such time as not be excluded from the condition causing such abandonment, invalidation or unenforceability shall be remedied and definition of Collateral to the extent severable, shall attach immediately to any portion that the assignment of such leaseproceeds is not prohibited, license, contract, property rights or agreement, or such asset related thereto, that does not result in any of the consequences specified in (A) or (B) above; (iii) any Inventory owned by the Grantor that contains or utilizes a patent, trademark or copyright the use of which has been licensed to Grantor under a license described under clause (iig), which license prohibits Liens on such Inventory, provided, however, that such security interest or lien shall attach to such Inventory immediately at such time as the condition prohibiting such Lien shall be waived by the licensor of such license or otherwise remedied; and (iv) any Intellectual Property.
Appears in 1 contract
Excluded Property. Notwithstanding anything in The security interest granted under Section 2.1 or elsewhere in this Agreement to the contrary, there is specifically excluded from the Security Interest, and the term Collateral 2.01 shall not include: attach to (a) the Grantors' right, title or interest in or to any property or rights in and to which the Administrative Agent has been granted a perfected security interest pursuant to either (i) any Equipment the Aircraft Mortgage or Goods that is subject to a "purchase money security interest," as such term is now or hereafter defined in the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) prohibits the creation by the Grantor of a security interest therein, unless the holder thereof has consented to the creation of such a security interest; (ii) the SGR Security Agreement, (b) any rights or property acquired under or in connection with a lease, license, contract, healthcare insurance receivable, property rights agreement or agreement to which Grantor is a party or any of its rights or interests thereunderlicense, or assets related thereto, if and for so long as the grant of such a security interest in such rights or lien property shall (i) constitute or result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of the any Grantor therein or (Bii) require the consent of a third party or constitute or result in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, healthcare insurance receivable, property rights agreement or agreement license (other than to the extent that any restriction on such assignment would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the U. S. Bankruptcy Code) or principles of equity), provided, however, provided that such security interest or lien the proceeds therefrom shall attach immediately at such time as not be excluded from the condition causing such abandonment, invalidation or unenforceability shall be remedied and definition of Collateral to the extent severable, shall attach immediately to any portion that the assignment of such leaseproceeds is not prohibited, license(c) [reserved], contract(d) Excluded Skymiles Receivables Accounts, Excluded Cargo Receivables Accounts or Excluded Passenger Receivables Accounts, (e) [reserved], (f) any assets or property rights (x) acquired in connection with acquisitions permitted by the Credit Agreement that are subject to Liens at the time of such acquisition or agreement(y) subject to Liens existing on such assets or properties of any Person that becomes a Grantor after the date hereof prior to the time such Person becomes a Grantor (or to Liens that are replacements, extensions, or renewals of such asset related theretoLiens on the same asset), that does not result in any the case of each of the consequences specified in foregoing sub-clauses (Ax) or and (B) above; (iii) any Inventory owned by the Grantor that contains or utilizes a patent, trademark or copyright the use of which has been licensed to Grantor under a license described under clause (iiy), which license prohibits Liens on only for so long as such Inventory, provided, however, that such security interest assets or lien shall attach property remain subject to such Inventory immediately at such time as the condition prohibiting such Lien shall be waived by the licensor of such license or otherwise remedied; Liens and (ivg) any Intellectual Escrow Accounts (all of the foregoing, collectively, the “Excluded Property”).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Delta Air Lines Inc /De/)
Excluded Property. Notwithstanding anything in Section 2.1 or elsewhere in this Agreement herein to the contrary, there is specifically excluded from in no event shall the Security InterestMortgaged Property include, and the term Collateral each Mortgagor shall be deemed not include: (i) to have granted a Lien in, any Equipment or Goods that is subject to a "purchase money security interest," as such term is now or hereafter defined in the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) prohibits the creation by the Grantor of a security interest therein, unless the holder thereof has consented to the creation of such a security interest; (ii) any lease, license, contract, property rights or agreement to which Grantor is a party or any of its rights or interests thereunder, or assets related thereto, if and for so long as the grant of such security interest or lien shall constitute or result in (A) the abandonment, invalidation or unenforceability of any Mortgagor’s right, title or interest of the Grantor therein or (Ba) in any contract, license, agreement, instrument or other document to the extent that the grant of a security interest therein is prohibited by, or constitutes a breach or default under or results in the termination pursuant of or gives rise to a right on the terms of, part of the parties thereto other than any Mortgagor to terminate (or a default materially modify) or requires any consent not obtained under, any such leasecontract, license, contractagreement, property rights instrument or agreement other document, or (b) in any assets to the extent the grant of any relevant jurisdiction security interests in such assets would (i) be prohibited by a Permitted Contractual Obligation binding on the assets (including permitted liens, leases or any other licenses) or applicable law (including the U. S. Bankruptcy Code) or principles of equity)in each case, provided, however, that such security interest or lien shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and except to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement, or such asset related thereto, that does not result in any of the consequences specified in prohibition (A) or (B) above; (iii) any Inventory owned by the Grantor that contains or utilizes a patent, trademark or copyright the use of which has been licensed to Grantor under a license described under clause (ii), which license prohibits Liens on such Inventory, provided, however, that such security interest or lien shall attach to such Inventory immediately at such time as the condition prohibiting such Lien shall could be waived by the licensor Company or any of its Subsidiaries, (B) is the result of an attempt to circumvent the collateral requirements of the Note Documents, or (C) is unenforceable after giving effect to applicable provisions of the Applicable UCC or other applicable law, other than proceeds thereof, the assignment of which is expressly deemed effective under the Applicable UCC or other applicable law notwithstanding such license prohibitions) or (ii) require obtaining the consent of any Governmental Authority; provided that any of the foregoing exclusions in Section 2.06(a) or (b) shall not apply if (x) such prohibition has been waived or such other party has otherwise remediedconsented to the creation hereunder of a Lien in such asset or (y) such prohibition would be rendered ineffective pursuant to Section 9-406, 9-407 or 9-408 of Article 9 of the Applicable UCC or any other Governmental Requirement; and (iv) provided further that immediately upon the ineffectiveness, lapse or termination of any Intellectual Propertysuch exclusion, such Mortgagor shall be deemed to have granted a Lien in all its rights, title and interests in and to such contract, agreement or other asset.
Appears in 1 contract
Excluded Property. Notwithstanding anything The security interest granted under Section 2.01 shall not attach to (a) any interests of any of the Grantors in Section 2.1 or elsewhere the joint ventures set forth on Schedule V attached hereto and any subsequent joint ventures in this Agreement which the Grantors invest, but only to the contrary, there is specifically excluded from extent that applicable law or the Security Interest, and organizational documents (including other applicable agreements among the term Collateral shall not include: investors in such joint venture) with respect to any such joint venture (i) any Equipment or Goods that is subject to a "purchase money security interest," as such term is now or hereafter defined in do not permit the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) prohibits the creation by the Grantor grant of a security interest therein, unless the holder thereof has consented to the creation in such interest or an assignment of such a security interest; interest or (ii) require the consent of any third party to permit such grant of a security interest or assignment (and such consent has not been granted), it being understood that as to any such joint venture where the applicable organizational documents (including other agreements among the investors in such joint venture) permit such a grant of a security interest or assignment without the consent of any third party and in accordance with applicable law, such interest in such joint venture shall be included in the Collateral (subject to clause (c) and clause (j) below) and the applicable Grantor shall cause the related certificates, if any, for such joint venture to be delivered to the Collateral Agent within ninety (90) days from the Closing Date (or such longer period as the Collateral Agent may agree), it being further understood that, in any event, the grant of the security interest described in Section 2.01 shall extend to the proceeds (of any kind) of any disposition of any such joint venture interests and all distributions thereon to the extent that the assignment of such proceeds or distributions are not prohibited, (b) applications filed in the USPTO to register trademarks or service marks on the basis of any Grantor’s “intent to use” such trademarks or service marks unless and until the filing of a “Statement of Use” or “Amendment to Allege Use” has been filed and accepted by the USPTO, whereupon such applications shall be automatically subject to the lien granted herein and deemed included in the Collateral, (c) any of the Securities in each foreign subsidiary of a Grantor in excess of sixty-five percent (65%) of the issued and outstanding Securities of such foreign subsidiary which to the extent applicable shall include any issued and outstanding Securities of such foreign subsidiary pledged under the Pledge Agreement so that collectively no more than 65% of such issued and outstanding stock is pledged notwithstanding the delivery by any Grantor to the Collateral Agent of Securities representing in excess of such percentage, (d) the Excluded Accounts, all Financial Assets credited to such Excluded Accounts and all Security Entitlements held in such Excluded Accounts, (e) the Grantors’ right, title or interest in or to any property or rights in and to which the Collateral Agent has been granted a perfected security interest pursuant to the First Lien Aircraft Mortgage, the First Lien SGR Security Agreement or the First Lien Pledge Agreement, (f) any rights or property acquired under or in connection with a lease, license, contract, healthcare insurance receivable, property rights agreement or agreement to which Grantor is a party or any of its rights or interests thereunderlicense, or assets related thereto, if and for so long as the grant of such a security interest in such rights or lien property shall (i) constitute or result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of the any Grantor therein or (Bii) require the consent of a third party or constitute or result in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, healthcare insurance receivable, property rights agreement or agreement license (other than to the extent that any restriction on such assignment would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the U. S. Bankruptcy Code) or principles of equity), provided, however, provided that such security interest or lien the proceeds therefrom shall attach immediately at such time as not be excluded from the condition causing such abandonment, invalidation or unenforceability shall be remedied and definition of Collateral to the extent severable, shall attach immediately to any portion that the assignment of such leaseproceeds is not prohibited, license, contract, property rights or agreement, or such asset related thereto, that does not result in any of the consequences specified in (A) or (B) above; (iiig) any Inventory owned by the Grantor governmental permit or franchise that contains or utilizes a patent, trademark or copyright the use of which has been licensed to Grantor under a license described under clause (ii), which license prohibits Liens on or collateral assignments of such Inventorypermit or franchise, provided, however, (h) Goods owned by any Grantor on the date hereof or hereafter acquired that such security interest are subject to a Lien securing an obligation or lien shall attach Capitalized Lease permitted to such Inventory immediately at such time as be incurred pursuant to the condition prohibiting provisions of the Credit Agreement if the contract or other agreement in which such Lien shall be waived by is granted (or the licensor documentation providing for such obligation or Capitalized Lease) prohibits the creation of any other Lien on such license or otherwise remedied; and Goods, (ivi) any Intellectual Property, including without limitation, intent-to-use trademark applications, for which the creation by a Grantor of a security interest therein is prohibited without the consent of a third party (and such consent has not been obtained) or by law, or would otherwise result in the loss by any Grantor of any material rights therein (other than to the extent that any restriction on such assignment would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) or any relevant jurisdiction or any other applicable law or principles of equity), (j) the Excluded Equity Interests, (k) the Excluded Equipment, (l) Excluded SkyMiles Assets, (m) assets that are subject to Liens permitted by Section 6.01(a), (d), (j), (y) or (aa) of the Credit Agreement (or the replacement, extension or renewal of any such Lien pursuant to Section 6.01(s) of the Credit Agreement) and (n) real property interests, farm products, as-extracted collateral or timber to be cut (all of the foregoing, collectively, the “Excluded Property”).
Appears in 1 contract
Sources: First Lien Revolving Credit and Guaranty Agreement (Delta Air Lines Inc /De/)
Excluded Property. Notwithstanding anything in Section 2.1 (a) any permit or elsewhere in this Agreement to the contrary, there is specifically excluded from the Security Interest, and the term Collateral shall not include: license or any contractual obligation entered into by any Obligor (i) that prohibits or requires the consent of any Equipment Person other than the Obligors or Goods that is subject Subsidiaries which has not been obtained as a condition to a "purchase money security interest," as such term is now or hereafter defined in the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) prohibits the creation by the Grantor such Obligor of a security interest therein, unless the holder thereof has consented to the creation of such a security interest; (ii) any lease, license, contract, property rights or agreement to which Grantor is a party or any of its rights or interests thereunder, or assets related thereto, if and for so long as the grant of such security interest or lien shall constitute or result in (A) the abandonment, invalidation or unenforceability of Lien on any right, title or interest in such permit, license or contractual obligation (other than customer contracts, master services agreements or work orders and Accounts which shall constitute part of the Grantor therein Collateral regardless) or (Bii) in a breach or termination pursuant to the terms ofextent that Applicable Law prohibits the creation of a Lien thereon, but only, with respect to the prohibition in (i) and (ii), to the extent, and for as long as, such prohibition is not terminated or a default under, any such lease, license, contract, property rights rendered unenforceable or agreement of any relevant jurisdiction otherwise deemed ineffective by the UCC or any other applicable law (including the U. S. Bankruptcy Code) or principles of equity)Applicable Law and any such consent has not been obtained, provided, however, that such security interest or lien the foregoing shall attach cease to be treated as “Excluded Property” (and shall constitute Collateral) immediately at such time as the condition causing such abandonment, invalidation contractual or unenforceability legal prohibition shall no longer be remedied applicable and to the extent severable, Agent’s Lien shall attach immediately to any portion of such leasepermit, license, contract, property rights license or agreement, or such asset related thereto, that does contract not result in any of subject to the consequences prohibitions specified in clauses (Ai) or (Bii) above; , (iiib) any Inventory Property owned by any Obligor that is subject to a Purchase Money Lien or a Capital Lease permitted under this Agreement to the Grantor that contains extent a security interest therein would violate such Permitted Purchase Money Debt or utilizes Capital Lease or create a patentright of termination in favor of the other party thereto (other than another Obligor or Subsidiary) after giving effect to the applicable anti-assignment provisions of the UCC or other Applicable Law, trademark or copyright (c) any other assets the use pledge of which has been licensed or grant of a security interest in which is prohibited by Applicable Law (to Grantor under a license described under clause (iithe extent effective after giving effect to the anti-assignment provisions of the UCC and other Applicable Law), which license prohibits Liens on such Inventory, provided, however, that such security interest or lien the foregoing shall attach cease to such Inventory be treated as “Excluded Property” (and shall constitute Collateral) immediately at such time as the condition prohibiting such legal prohibition shall no longer be applicable and to the extent severable, Agent’s Lien shall be waived by attach immediately to any portion of Property not subject to the licensor of such license or otherwise remedied; prohibitions, and (ivd) Excluded Accounts (other than of a type described in clause (a)(vi) of the definition thereof); provided, that, notwithstanding the foregoing in each case, “Excluded Property” shall not include any proceeds, products, substitutions or replacements of Excluded Property, including monies due or to become due to an Obligor (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Property). Excluded Subsidiary: any of (a) the Excluded Guarantors, (b) any Intellectual PropertySubsidiary organized under the laws of a state other than the U.S., the U.K., the Grand Dutchy of Luxembourg or the Cayman Islands, and (c) with respect to Subsidiaries organized under the laws of the U.S., the U.K., the Grand Dutchy of Luxembourg or the Cayman Islands, Subsidiaries (other than Excluded Guarantors) that, as of the last day of the Fiscal Quarter of Helix most recently ended, had both revenues and assets that constitute less than 5.0% of the consolidated revenues and assets of Helix and its Subsidiaries in such jurisdiction (determined on a jurisdiction by jurisdiction basis).
Appears in 1 contract
Sources: Loan, Security and Guaranty Agreement (Helix Energy Solutions Group Inc)
Excluded Property. Notwithstanding anything in Section 2.1 or elsewhere in this Agreement to the contrary, there is specifically excluded from the Security Interest, and the term Collateral shall not include: (i) any Equipment or Goods that is subject to a "“purchase money security interest," ” as such term is now or hereafter defined in the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) prohibits the creation by the a Grantor of a junior security interest therein, unless the holder thereof has consented to the creation of such a junior security interest; (ii) any lease, license, contract, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder, or assets related thereto, thereunder if and for so long as the grant of such security interest or lien shall constitute or result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of the any Grantor therein or (B) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the U. S. Bankruptcy Code) or principles of equity), provided, however, that such security interest or lien shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement, or such asset related thereto, agreement that does not result in any of the consequences specified in (A) or (B) above; (iii) any Inventory owned by the a Grantor that contains or utilizes a patent, trademark or copyright the use of which has been licensed to such Grantor under a license described under clause (ii), which license prohibits Liens on such Inventory, provided, however, that such security interest or lien shall attach to such Inventory immediately at such time as the condition prohibiting such Lien shall be waived by the licensor of such license or otherwise remedied; and (iv) any Intellectual PropertyEquity Interest in any Foreign Subsidiary that is not a first tier Subsidiary of the Company or any other Grantor; (v) the stock or other equity interest of any Foreign Subsidiary, other than the stock or other equity interest of any first tier Foreign Subsidiary representing no more than 65% of the total combined voting power of all classes of stock or other equity interest of such Foreign Subsidiary entitled to vote and having total assets greater than $5,000,000; and (vi) any Equity Interests in any Person listed on Schedule 2.1 and upon the written consent of the Collateral Agent, any Equity Interests in any Pledged Entity which is not a Subsidiary of the Company, in each case, if and to the extent that the terms of the organizational documents of such Pledged Entity do not permit the grant of a security interest in such Equity Interests by the owner thereof or the applicable Grantor has been unable to obtain any approval or consent to the creation of a security interest therein which is required under such organizational documents.
Appears in 1 contract
Sources: Pledge and Security Agreement (American Greetings Corp)
Excluded Property. Notwithstanding anything in Section 2.1 or elsewhere in this Agreement the foregoing, the Collateral shall not include any property (i) to the contraryextent such property is prohibited from being assigned or encumbered by a Lien under any agreement related thereto (including any agreement relating to Indebtedness incurred to finance such property and permitted under Section 6.01(i) of the Credit Agreement) and such prohibition is not overridden by the applicable provisions of the UCC, there is specifically excluded from (ii) in the definition of "Property" in any Mortgage made in favor of or to be made in favor of the Collateral Trustee, (iii) shares of stock or other equity interests of the Borrower or any of its Restricted Subsidiaries in any Joint Venture or Unrestricted Subsidiary (but only to the extent that a pledge of such shares of stock pursuant to the Security InterestDocuments is prohibited by such Person's organizational documents, or by an agreement or other instrument to which such Person is a party, and the term existence of such prohibition has been demonstrated to the satisfaction of the Administrative Agent and the Administrative Agent has so advised the Collateral shall not include: Trustee), (iiv) all real property, other than any Equipment real property on which any tracking, telemetry, control and monitoring or Goods teleport facility of the Borrower or any of its Restricted Subsidiaries is situated and (v) property as to which the Borrower has demonstrated to the satisfaction of the Administrative Agent (and as to which the Administrative Agent has so advised the Collateral Trustee), that is the expense, tax or regulatory consequences or difficulty of subjecting such property to the Lien of the Security Documents would not, in light of the benefits that would accrue to the Lenders, justify such property being so subject to such Lien. In addition, to the extent that any Person shall enter into or be a "purchase money security interest," as party to a Hedging Agreement with the Borrower at the time that such term Person (or an affiliate thereof) is now or hereafter defined a Lender under the Credit Agreement, such Hedging Agreement shall cease to be entitled to the benefits of this Agreement in the UCC, which (x) constitutes a Permitted Lien event that such Lender assigns all of its loans and commitments under the Credit Agreement and (y) prohibits is no longer a Lender under the creation by the Grantor of a security interest therein, unless the holder thereof has consented to the creation of such a security interest; (ii) any lease, license, contract, property rights or agreement to which Grantor is a party or any of its rights or interests thereunder, or assets related thereto, if and for so long as the grant of such security interest or lien shall constitute or result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of the Grantor therein or (B) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement of any relevant jurisdiction or any other applicable law (including the U. S. Bankruptcy Code) or principles of equity), provided, however, that such security interest or lien shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement, or such asset related thereto, that does not result in any of the consequences specified in (A) or (B) above; (iii) any Inventory owned by the Grantor that contains or utilizes a patent, trademark or copyright the use of which has been licensed to Grantor under a license described under clause (ii), which license prohibits Liens on such Inventory, provided, however, that such security interest or lien shall attach to such Inventory immediately at such time as the condition prohibiting such Lien shall be waived by the licensor of such license or otherwise remedied; and (iv) any Intellectual PropertyCredit Agreement.
Appears in 1 contract
Excluded Property. Notwithstanding anything in Section 2.1 or elsewhere in this Agreement to the contrary, there is specifically excluded from the Security Interest, and the term Collateral shall not include: (i) any Equipment or Goods that is subject to a "“purchase money security interest," ” as such term is now or hereafter defined in the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) prohibits the creation by the a Grantor of a security interest therein, unless the holder thereof has consented to the creation of such a security interest; (ii) any lease, license, contract, property rights or agreement to which any Grantor is a party or any of its rights or interests thereunder, or assets related thereto, if and for so long as the grant of such security interest or lien shall constitute or result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of the any Grantor therein or (B) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law Law (including the U. S. Bankruptcy Code) or principles of equity), provided, however, that such security interest or lien shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement, or such asset related thereto, that does not result in any of the consequences specified in (A) or (B) above; (iii) any Inventory owned by the a Grantor that contains or utilizes a patent, trademark or copyright the use of which has been licensed to such Grantor under a license described under clause (ii), which license prohibits Liens on such Inventory, provided, however, that such security interest or lien shall attach to such Inventory immediately at such time as the condition prohibiting such Lien shall be waived by the licensor of such license or otherwise remedied; and (iv) any Intellectual PropertyEquity Interest in any Foreign Subsidiary that is not a first tier Subsidiary of the Company or any other Grantor; (v) the stock or other equity interest of any Foreign Subsidiary, other than the stock or other equity interest of any first tier Foreign Subsidiary representing no more than 65% of the total combined voting power of all classes of stock or other equity interest of such Foreign Subsidiary entitled to vote and having total assets greater than $5,000,000; and (vi) any Equity Interests in any Person listed on Schedule 2.1 and upon the prior written notice to, consultation with, and written acknowledgment of. the Collateral Agent, any Equity Interests in any Person which is not a Subsidiary of the Company, in each case, if and to the extent that the terms of the Governing Documents of such Person do not permit the grant of a security interest in such Equity Interests by the owner thereof or the applicable Grantor has been unable to obtain any approval or consent to the creation of a security interest therein which is required under such organizational documents.
Appears in 1 contract
Sources: Pledge and Security Agreement (American Greetings Corp)
Excluded Property. Notwithstanding anything in The security interest granted under Section 2.1 or elsewhere in this Agreement to the contrary, there is specifically excluded from the Security Interest, and the term Collateral 2.01 shall not include: attach to (a) the Grantors' right, title or interest in or to any property or rights in and to which the Administrative Agent has been granted a perfected security interest pursuant to either (i) any Equipment the Aircraft Mortgage or Goods that is subject to a "purchase money security interest," as such term is now or hereafter defined in the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) prohibits the creation by the Grantor of a security interest therein, unless the holder thereof has consented to the creation of such a security interest; (ii) the SGR Security Agreement, (b) any rights or property acquired under or in connection with a lease, license, contract, healthcare insurance receivable, property rights agreement or agreement to which Grantor is a party or any of its rights or interests thereunderlicense, or assets related thereto, if and for so long as the grant of such a security interest in such rights or lien property shall (i) constitute or result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of the any Grantor therein or (Bii) require the consent of a third party or constitute or result in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, healthcare insurance receivable, property rights agreement or agreement license (other than to the extent that any restriction on such assignment would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the U. S. Bankruptcy Code) or principles of equity), provided, however, provided that such security interest or lien the proceeds therefrom shall attach immediately at such time as not be excluded from the condition causing such abandonment, invalidation or unenforceability shall be remedied and definition of Collateral to the extent severablethat the assignment of such proceeds is not prohibited, shall attach immediately (c) any Ground Support Equipment or Tooling subject to a Lien granted on or prior to the date such Ground Support Equipment or Tooling would otherwise constitute Collateral hereunder (or any refinancing or replacement of such Lien on the same asset), in each case, securing Indebtedness permitted pursuant to Section 6.03(k)(i) of the Credit Agreement, (d) Excluded Skymiles Receivables Accounts or Excluded Cargo Receivables Accounts, (e) any Ground Support Equipment or Tooling financed by or acquired with the proceeds of ARB Indebtedness to the extent that, on the date such Ground Support Equipment or Tooling would otherwise constitute Collateral hereunder, the granting of a security interest in such Ground Support Equipment or Tooling would constitute a breach or violation of a valid and effective restriction in favor of a third party or give rise to any portion valid and effective indemnification obligations or any valid and effective right to terminate or commence the exercise of remedies under such restrictions, (f) any assets or property (x) acquired in connection with acquisitions permitted by the Credit Agreement that are subject to Liens at the time of such leaseacquisition or (y) subject to Liens existing on such assets or properties of any Person that becomes a Grantor after the date hereof prior to the time such Person becomes a Grantor (or to Liens that are replacements, license, contract, property rights or agreementextensions, or renewals of such asset related theretoLiens on the same asset), that does not result in any the case of each of the consequences specified in foregoing sub-clauses (Ax) or and (B) above; (iii) any Inventory owned by the Grantor that contains or utilizes a patent, trademark or copyright the use of which has been licensed to Grantor under a license described under clause (iiy), which license prohibits Liens on only for so long as such Inventory, provided, however, that such security interest assets or lien shall attach property remain subject to such Inventory immediately at such time as the condition prohibiting such Lien shall be waived by the licensor of such license or otherwise remedied; Liens and (ivg) any Intellectual Escrow Accounts (all of the foregoing, collectively, the “Excluded Property”).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Delta Air Lines Inc /De/)
Excluded Property. Notwithstanding anything in Section 2.1 or elsewhere in this Agreement to Sections 2.1.1 through 2.1.4 and 2.2.1, the contrary, there is specifically excluded from payment and performance of the Security Interest, and the term Collateral Credit Obligations shall not include: be secured by:
(i1) any Equipment contract, license, permit, lease or Goods franchise that is subject to a "purchase money security interest," as such term is now or hereafter defined in the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) validly prohibits the creation by such Obligor of a security interest in such contract, license, permit, lease or franchise (or in any rights or property obtained by such Obligor under such contract, license, permit, lease or franchise); PROVIDED, HOWEVER, that the Grantor provisions of this Section 2.1.15 shall not prohibit the security interests created by this Agreement from extending to the proceeds of such contract, license, permit, lease or franchise (or such rights or property) or to the monetary value of the good will and other general intangibles of the Obligors relating thereto;
(2) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; PROVIDED, unless HOWEVER, that the holder thereof has consented provisions of this Section 2.1.15 shall not prohibit the security interests created by this Agreement from extending to the proceeds of such rights or property or to the monetary value of the good will and other general intangibles of the Obligors relating thereto;
(3) any lease of real or personal property to the extent that the creation of such a security interest; (ii) any lease, license, contract, property rights or agreement to which Grantor is a party or any of its rights or interests thereunder, or assets related thereto, if and for so long as the grant of such security interest or lien shall constitute or would result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of the Grantor therein or (B) in a breach or termination pursuant default by such Obligor under such lease or which would result in a change in control or other matter requiring the consent of the other party to such lease;
(4) more than 66% of the outstanding voting stock or other voting equity in any Foreign Subsidiary to the terms of, extent that the pledge or voting stock or other voting equity above such amount would result in a default under, any such lease, license, contract, property rights or agreement repatriation of any relevant jurisdiction or any other applicable law a material amount of foreign earnings under the Code (including the U. S. Bankruptcy "deemed dividend") provisions of section 956 of the Code); or
(5) or principles of equity)the property described on EXHIBIT 2.1.15(5) and in Section 2.2 (but, providedwith respect to such property described in Section 2.2, however, that such security interest or lien shall attach immediately at such time as only in the condition causing such abandonment, invalidation or unenforceability shall be remedied event and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement, or such asset related thereto, that does the Lender has not result in any of the consequences specified in (A) or (B) above; (iii) any Inventory owned by the Grantor that contains or utilizes a patent, trademark or copyright the use of which has been licensed to Grantor under a license described under clause (ii), which license prohibits Liens on such Inventory, provided, however, that such security interest or lien shall attach to such Inventory immediately at such time as items be included in the condition prohibiting such Lien shall be waived by the licensor of such license or otherwise remedied; and (iv) any Intellectual PropertyCredit Security pursuant thereto).
Appears in 1 contract
Excluded Property. Notwithstanding anything in Section 2.1 or elsewhere in this Agreement to Sections 3.1.1 through 3.1.14 and 3.2.1, the contrary, there is specifically excluded from payment and performance of the Security Interest, and the term Collateral Credit Obligations shall not include: be secured by:
(i1) any Equipment contract, license, permit, lease or Goods franchise that is subject to a "purchase money security interest," as such term is now or hereafter defined in the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) validly prohibits the creation by such Obligor of a security interest in such contract, license, permit, lease or franchise (or in any rights or property obtained by such Obligor under such contract, license, permit, lease or franchise); PROVIDED, HOWEVER, that the Grantor provisions of this Section 3.1.15 shall not prohibit the security interests created by this Agreement from extending to the proceeds of such contract, license, permit, lease or franchise (or such rights or property) or to the monetary value of the good will and other general intangibles of the Obligors relating thereto;
(2) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; PROVIDED, unless HOWEVER, that the holder thereof has consented provisions of this Section 3.1.15 shall not prohibit the security interests created by this Agreement from extending to the proceeds of such rights or property or to the monetary value of the good will and other general intangibles of the Obligors relating thereto;
(3) any lease of real or personal property to the extent that the creation of such a security interest; (ii) any lease, license, contract, property rights or agreement to which Grantor is a party or any of its rights or interests thereunder, or assets related thereto, if and for so long as the grant of such security interest or lien shall constitute or would result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of the Grantor therein or (B) in a breach or termination pursuant default by such Obligor under such lease or which would result in a change in control or other matter requiring the consent of the other party to such lease;
(4) more than 66% of the outstanding voting stock or other voting equity in any Foreign Subsidiary to the terms of, extent that the pledge of voting stock or other voting equity above such amount would result in a default under, any such lease, license, contract, property rights or agreement repatriation of any relevant jurisdiction or any other applicable law a material amount of foreign earnings under the Code (including the U. S. Bankruptcy Code) or principles "deemed dividend" provisions of equity), provided, however, that such security interest or lien shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement, or such asset related thereto, that does not result in any section 956 of the consequences specified in Code); or
(A5) or (B) above; (iii) any Inventory owned by the Grantor that contains or utilizes a patent, trademark or copyright the use of which has been licensed to Grantor under a license property described under clause (ii), which license prohibits Liens on such Inventory, provided, however, that such security interest or lien shall attach to such Inventory immediately at such time as the condition prohibiting such Lien shall be waived by the licensor of such license or otherwise remedied; and (iv) any Intellectual Property.EXHIBIT 3.1.15
Appears in 1 contract
Sources: Guarantee and Security Agreement (Nextera Enterprises Inc)
Excluded Property. (a) Notwithstanding anything to the contrary contained in Section 2.1 the definition of Collateral, Sections 3.1 and 3.2 or elsewhere in any other provisions of this Agreement to the contraryor any Mortgage, there is specifically excluded from the Security Interest, and the term Collateral neither this Agreement nor any Mortgage shall not include: (i) any Equipment or Goods that is subject to constitute a "purchase money security interest," as such term is now or hereafter defined in the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) prohibits the creation by the Grantor grant of a security interest therein, unless the holder thereof has consented in:
(1) any property to the creation of such a security interest; (ii) any leaseextent that, license, contract, property rights or agreement to which Grantor is a party or any of its rights or interests thereunder, or assets related thereto, if and for so long as the as, such grant of such a security interest or lien shall constitute or result in interest: (A) the abandonmentis prohibited by any Requirements of Law of a Governmental Authority, invalidation or unenforceability of any right, title or interest of the Grantor therein or (B) in requires a consent not obtained of any Governmental Authority pursuant to such Requirement of Law or (C) is prohibited by, or constitutes a breach or default under or results in the termination pursuant to the terms of, or a default requires any consent not obtained under, any such leasepermit, contract, license, contractagreement, instrument or other document evidencing or giving rise to such property rights or agreement or, in the case of any relevant jurisdiction Investment Property, Pledged Stock or Pledged Note, any other applicable law (including the U. S. Bankruptcy Code) shareholder or principles of equity)similar agreement, provided, however, that such security interest or lien shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and except to the extent severable, shall attach immediately to any portion that such Requirement of Law or the term in such leasecontract, license, contract, property rights or agreement, instrument or other document or shareholder or similar agreement providing for such asset related theretoprohibition, that does not result in breach, default or termination or requiring such consent is ineffective under applicable law; and
(2) any property securing Indebtedness incurred after the date hereof under Section 3.2(b)(6) of the consequences specified Indenture with a Lien in (A) or (B) above; (iii) any Inventory owned by the Grantor that contains or utilizes a patent, trademark or copyright the use of which has been licensed to Grantor under a license described under reliance on clause (ii10) of the definition of Permitted Liens contained in the Indenture, but solely to the extent the documentation relating thereto prohibits such assets from being Collateral and no Lien on those assets secures any other Indebtedness of any Grantor; provided that only such property whose price of acquisition, construction or improvement is financed by means of the Indebtedness described in this clause (2) shall be excluded from the Collateral pursuant to this clause (2), which license prohibits Liens on such Inventory, provided, however, that such and no security interest on any property granted pursuant to this Agreement or lien shall attach any Mortgage and existing prior to the incurrence of such Inventory immediately at such time as the condition prohibiting such Lien Indebtedness shall be waived by released from the licensor of such license or otherwise remedied; and Collateral pursuant to this clause (iv) any Intellectual Property2).
Appears in 1 contract
Sources: Note Security Agreement (Cellu Tissue Holdings, Inc.)
Excluded Property. Notwithstanding anything in Section 2.1 or elsewhere in this Agreement to Sections 2.1.1 through 2.1.17, the contrary, there is specifically excluded from payment and performance of the Security Interest, and the term Collateral Secured Obligations shall not include: be secured by:
(ia) any Equipment contract, lease, license, permit or Goods franchise that is subject to a "purchase money security interest," as such term is now or hereafter defined in the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) validly prohibits the creation by such Pledgor of a security interest in such contract, lease, license, permit or franchise (or in any rights or property obtained by such Pledgor under such contract, lease, license, permit or franchise); provided, however, that the Grantor provisions of this Section 2.1.18 shall not prohibit the security interests created by this Agreement from extending to the proceeds of such contract, lease, license, permit or franchise (or such rights or property) or to the monetary value of the good will and other general intangibles of the Pledgors relating thereto;
(b) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein, unless the holder thereof has consented to the creation of such a security interest; (ii) any lease, license, contract, property rights or agreement to which Grantor is a party or any of its rights or interests thereunder, or assets related thereto, if and for so long as the grant of such security interest or lien shall constitute or result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of the Grantor therein or (B) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement of any relevant jurisdiction or any other applicable law (including the U. S. Bankruptcy Code) or principles of equity), provided, however, that the provisions of this Section 2.1.18 shall not prohibit the security interests created by this Agreement from extending to the proceeds of such security interest rights or lien shall attach immediately at such time as property or to the condition causing such abandonment, invalidation monetary value of the good will and other general intangibles of the Pledgors relating thereto;
(i) any rights or unenforceability shall be remedied and property to the extent severable, shall attach immediately that such rights or property secure purchase money financing therefor (including Capital Leases) permitted by the Indenture and the agreements providing such purchase money financing prohibit the creation of a further security interest therein or (ii) items of personal property hereafter acquired by the Pledgors in accordance with section 4.12 of the Indenture for so long as such items of personal property are subject to any portion of such leaseCapitalized Lease Obligation, license, contract, property rights Lien or agreement, or such asset related thereto, that does not result in any of the consequences specified in (A) or (B) abovesecurity interest; (iii) any Inventory owned by the Grantor that contains or utilizes a patent, trademark or copyright the use of which has been licensed to Grantor under a license described under clause (ii), which license prohibits Liens on such Inventory, provided, however, that such upon release of any purchase money security interest affecting such right or lien property or any Capitalized Lease Obligation, Lien or security interest affecting any such item of personal property, such right, property, or item of personal property shall attach constitute Pledged Collateral hereunder; provided further, however, that the provisions of this Section 2.1.18 shall not prohibit the security interests created by this Agreement from extending to the proceeds of such rights or property or items of personal property or to the monetary value of the good will and other general intangibles of the Pledgors relating thereto;
(d) more than 65% of the outstanding voting stock or other voting equity in any Subsidiary of the Company that is organized under the laws of, and conducts its business primarily in a jurisdiction outside of, the United States of America and that is not domesticated or dually incorporated under the laws of the United States of America or any state thereof to the extent that the pledge of voting stock or other voting equity above such amount would result in (i) a repatriation of a material amount of foreign earnings under the Internal Revenue Code (including the “deemed dividend” provisions of section 956 of the Internal Revenue Code) or (ii) a violation by Doe Run Peru or any of its Subsidiaries of the Peruvian Revolving Credit Facility or any replacement thereof;
(e) any rights or property to the extent that such rights or property secure, as of the date hereof, the payment and performance of the Indebtedness of the Company and its Subsidiaries in respect of the Existing Senior Secured Bonds outstanding on the date hereof immediately after giving effect to the consummation of the Tender Offer and the Exchange Offer; provided, however, that the provisions of this Section 2.1.18 shall not prohibit the security interests created by this Agreement from extending to such Inventory immediately at rights or property after all such time as the condition prohibiting such Lien shall be waived Existing Senior Secured Bonds have been (i) purchased, redeemed or defeased by the licensor Company or any of such license its Affiliates or (ii) otherwise remedied; paid in full and (iv) any Intellectual Property.discharged;
Appears in 1 contract
Excluded Property. Notwithstanding anything to the contrary set forth in Section 2.1 5.1 above, the types or elsewhere items of Collateral described in this Agreement to the contrary, there is specifically excluded from the Security Interest, and the term Collateral such Section shall not include: include the following (icollectively, the “Excluded Property”):
(a) any Equipment rights or Goods that is subject to a "purchase money security interest," interests in any contract, lease, permit, license, charter or license agreement covering real or personal property, as such term is now or hereafter defined in the UCCsuch, which (x) constitutes a Permitted Lien if under the Credit Agreement and (y) prohibits terms of such contract, lease, permit, license, charter or license agreement, or applicable law with respect thereto, the creation by the Grantor valid grant of a security interest thereinor lien therein to Agent is prohibited and such prohibition has not been or is not waived or the consent of the other party to such contract, unless lease, permit, license, charter or license agreement has not been or is not otherwise obtained or under applicable law such prohibition cannot be waived; provided, that, the holder thereof has consented foregoing exclusion shall in no way be construed (i) to apply if any such prohibition is unenforceable under Sections 9-406, 9-407 or 9-408 of the UCC or other applicable law or (ii) so as to limit, impair or otherwise affect Agent’s unconditional continuing security interests in and liens upon any rights or interests of Borrower in or to monies due or to become due under any such contract, lease, permit, license, charter or license agreement (including any Receivables);
(b) any rights, title and interest in, to and under the following, in each case, whether now owned or existing or hereafter acquired or arising, and wherever located:
(i) all Real Property and fixtures;
(ii) the Compass Account (defined below) and all funds deposited therein so long as no more than $25,000 is maintained in such deposit account for longer than five consecutive Business Days; and
(iii) all Equipment;
(iv) all construction agreements, equipment purchase agreements, equipment refurbishment agreements and warranties, in each case which are related solely to the creation Real Property or the Equipment;
(v) all Intellectual Property related solely to the Equipment;
(vi) all general intangibles arising solely from the foregoing;
(vii) all chattel paper, instruments and documents evidencing, governing, securing or substituted for the foregoing;
(viii) all deposit accounts (including all funds on deposit therein or credited thereto) and all securities accounts (including any and all investment property held therein or credited thereto), in each case only if all funds, investment property or other assets deposited or held therein or credited consist solely of identifiable proceeds arising from the sale, lease or other disposition of the foregoing;
(ix) all supporting obligations related solely to the foregoing;
(x) all commercial tort claims related solely to the foregoing;
(xi) Records solely evidencing or governing the foregoing; and
(xii) all proceeds of sale or other disposition of the foregoing, in any form, including, without limitation, insurance proceeds and all claims against third parties for loss or damage to or destruction of or other involuntary conversion of any kind or nature of any or all of the foregoing;
(c) the Capital Stock of the Foreign Subsidiaries in excess of sixty-six (66%) percent of all of the issued and outstanding shares of Capital Stock of such a security interest; Subsidiary;
(d) each deposit account, investment account or securities account into which (i) the Net Current Asset Escrow Amount and the Indemnity Escrow Amount have been deposited pursuant to the Escrow Agreements (each as defined in the ▇▇▇▇▇▇▇ Purchase Agreement) and (ii) any leaseother escrow funds, licensedeposits for acquisitions and/or post-closing adjustment amounts are from time to time deposited, contractin each case together with all assets deposited therein, property rights or agreement to which Grantor is a party or any of its rights or interests thereunder, or assets related thereto, if and for so long as the grant of such security interest or lien shall constitute or result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of the Grantor therein or (B) in a breach or termination required pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement of any relevant jurisdiction or ▇▇▇▇▇▇▇ Purchase Agreement and any other applicable law acquisition or investment expressly permitted under Section 9.10 hereof, solely for the period that such funds are required to be held on deposit or in escrow pursuant to the ▇▇▇▇▇▇▇ Purchase Agreement, the Escrow Agreements, such other transaction agreement and any escrow agreement related thereto; and
(including e) any intent-to-use trademark application filed in the U. S. Bankruptcy Code) or principles of equityUnited States Patent and Trademark Office pursuant to 15 U.S.C. § 1051 Section 1(b), provided, however, that unless and until such security interest trademark is used in interstate commerce and unless and until an acceptable amendment to allege use or lien shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and statement of use pursuant to the extent severable, shall attach immediately to any portion of such lease, license, contract, property rights or agreement, or such asset related thereto, that does not result in any of the consequences specified in (A15 U.S.C. § 1051 Sections 1(c) or (B) above; (iii) any Inventory owned by the Grantor that contains or utilizes a patent, trademark or copyright the use of which has been licensed to Grantor under a license described under clause (iid), which license prohibits Liens on such Inventoryas applicable, provided, however, that such security interest or lien shall attach to such Inventory immediately at such time as is filed with the condition prohibiting such Lien shall be waived by the licensor of such license or otherwise remedied; United States Patent and (iv) any Intellectual PropertyTrademark Office.
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Excluded Property. Notwithstanding anything the foregoing, in Section 2.1 or elsewhere in this Agreement no event will the Collateral include Excluded Property; provided, however, that all proceeds of Excluded Property will be Collateral to the contrary, there is specifically excluded from extent that the Security Interest, and the term Collateral shall proceeds are not include: themselves Excluded Property. “Excluded Property” means (i1) any Equipment or Goods that is subject to a "purchase money security interest," as such term is property in which the Pledgor now or hereafter defined has rights in the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) prohibits the creation by the Grantor of a security interest thereinmay not be granted by the Pledgor in such property as a matter of applicable law, unless rule or regulation, or under the holder thereof has consented terms of the property or the governing document applicable thereto, after giving effect to the creation of such a security interest; UCC (ii) any lease, license, contract, property rights or agreement to which Grantor is a party or any of its rights successor provision or interests thereunder, or assets related thereto, if and for so long as the grant of such security interest or lien shall constitute or result in (Aprovisions) the abandonment, invalidation or unenforceability of any right, title or interest of the Grantor therein or (B) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement of any relevant jurisdiction or any other applicable law (including the U. S. Bankruptcy Code) Code of the United States or principles of equity), providedwithout the consent of one or more parties thereto other than any Loan Party, however, that but only for so long as such security interest or lien shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied consent has not been obtained; (2) assets subject to capital leases and purchase money financings to the extent severablesuch capital leases and purchase money financings are permitted under the Loan Agreement and prohibit the granting of a Lien; (3) any application for registration of a trademark, service ▇▇▇▇ or other ▇▇▇▇ filed with the PTO on an intent-to-use basis to the extent an assignment thereof would void or invalidate such application, until such time (if any) as a verified statement of use (or the equivalent) for such trademark, service ▇▇▇▇ or other ▇▇▇▇ is filed with and accepted by the PTO, at which time such trademark, service ▇▇▇▇ or other ▇▇▇▇ shall attach immediately to any portion of such lease, license, contract, property rights or agreement, or such asset related thereto, that does not result in any automatically become part of the consequences specified in (A) or (B) aboveCollateral and subject to the security interest pledged; (iii4) escrow accounts and trust accounts, in each case entered into in the ordinary course of business and consistent with prudent business judgment (as determined by the Pledgor in good faith), where the applicable Pledgor holds the funds exclusively for the benefit of an unaffiliated third party; (5) any Inventory owned by account that is used for the Grantor that contains or utilizes a patentsole purpose of making payroll and withholding tax payments related thereto and other employee wage and benefits payments and accrued and unpaid employee compensation payments (including salaries, trademark or copyright the use of which has been licensed to Grantor under a license described under clause (iiwages, benefits and expense reimbursements, 401(k) and other retirement plans and employee benefits, including rabbi trusts for deferred compensation and health care benefits), which license prohibits Liens on such Inventory, provided, however, that such security interest or lien shall attach to such Inventory immediately at such time as the condition prohibiting such Lien shall be waived by the licensor of such license or otherwise remedied; and (iv6) any Intellectual Propertyaccount that is used for the sole purpose of paying taxes, including sales taxes. The accounts referred to in the preceding clauses (4), (5), and (6) are referred to collectively as the “Excluded Accounts.” Pledgor warrants that Pledgor is an organization registered under the laws of Israel. Pledgor warrants that its chief executive office (or principal residence, if applicable) is located at the address set forth in the introductory paragraph hereof. Pledgor warrants that the Collateral (except goods in transit) is located or domiciled at the following additional address: 13 Gan Rave Street, Industrial Zone ▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
Appears in 1 contract
Excluded Property. Notwithstanding anything in Section 2.1 or elsewhere in this Agreement to Sections 3.1.1 through 3.1.14, the contrary, there is specifically excluded from payment and performance of the Security Interest, and the term Collateral Obligations shall not include: be secured by:
(ia) any Equipment contract, license, permit or Goods franchise that is subject to a "purchase money security interest," as such term is now or hereafter defined in the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) validly prohibits the creation by such Obligor of a security interest in such contract, license, permit or franchise (or in any rights or property obtained by such Obligor under such contract, license, permit or franchise); PROVIDED, HOWEVER, that the Grantor provisions of this Section 3.1.15 shall not prohibit the security interests created by this Agreement from extending to the proceeds of such contract, license, permit or franchise (or such rights or property) or to the monetary value of the good will and other general intangibles of the Obligors relating thereto;
(b) any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein; PROVIDED, unless HOWEVER, that the holder thereof has consented provisions of this Section 3.1.15 shall not prohibit the security interests created by this Agreement from extending to the proceeds of such rights or property or to the monetary value of the good will and other general intangibles of the Obligors relating thereto;
(c) any rights or property to the extent that such rights or property secure purchase money financing therefor permitted by the Exchange Agreement and the agreements providing such purchase money financing prohibit the creation of a further security interest therein; PROVIDED, HOWEVER, that the provisions of this Section 3.1.15 shall not prohibit the security interests created by this Agreement from extending to the proceeds of such a security interest; (ii) any lease, license, contract, property rights or agreement property or to which Grantor is a party the monetary value of the good will and other general intangibles of the Obligors relating thereto;
(d) more than 66% of the outstanding voting stock or other voting equity in any Foreign Subsidiary to the extent that the pledge of its rights voting stock or interests thereunder, or assets related thereto, if and for so long as the grant of other voting equity above such security interest or lien shall constitute or amount would result in (A) a repatriation of a material amount of foreign earnings under the abandonment, invalidation or unenforceability of any right, title or interest of the Grantor therein or (B) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement of any relevant jurisdiction or any other applicable law Code (including the U. S. Bankruptcy "deemed dividend" provisions of section 956 of the Code); or
(e) or principles Margin Stock unless the applicable requirements of equity)Regulations T, provided, however, that such security interest or lien shall attach immediately at such time as U and X of the condition causing such abandonment, invalidation or unenforceability shall be remedied Board of Governors of the Federal Reserve System have been satisfied; or
(f) the items described in Section 3.2 (but only in the event and to the extent severablethe Agent has not specified that such items be included in the Credit Security pursuant thereto). In addition, in the event any Obligor disposes of assets to third parties in a transaction permitted by section 4.3 of the Exchange Agreement, such assets, but not the proceeds or products thereof, shall attach immediately to any portion of such lease, license, contract, property rights or agreement, or such asset related thereto, that does not result in any be released from the Lien of the consequences specified in (A) or (B) above; (iii) any Inventory owned by the Grantor that contains or utilizes a patent, trademark or copyright the use of which has been licensed to Grantor under a license described under clause (ii), which license prohibits Liens on such Inventory, provided, however, that such security interest or lien shall attach to such Inventory immediately at such time as the condition prohibiting such Lien shall be waived by the licensor of such license or otherwise remedied; and (iv) any Intellectual PropertyCredit Security.
Appears in 1 contract
Sources: Security Agreement (Ibasis Inc)
Excluded Property. Notwithstanding anything The security interest granted under Section 2.01 shall not attach to (a) any interests of any of the Grantors in Section 2.1 or elsewhere the joint ventures set forth on Schedule V attached hereto and any subsequent joint ventures in this Agreement which the Grantors invest, but only to the contrary, there is specifically excluded from extent that applicable law or the Security Interest, and organizational documents (including other applicable agreements among the term Collateral shall not include: investors in such joint venture) with respect to any such joint venture (i) any Equipment or Goods that is subject to a "purchase money security interest," as such term is now or hereafter defined in do not permit the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) prohibits the creation by the Grantor grant of a security interest therein, unless the holder thereof has consented to the creation in such interest or an assignment of such a security interest; interest or (ii) require the consent of any third party to permit such grant of a security interest or assignment (and such consent has not been granted), it being understood that as to any such joint venture where the applicable organizational documents (including other agreements among the investors in such joint venture) permit such a grant of a security interest or assignment without the consent of any third party and in accordance with applicable law, such interest in such joint venture shall be included in the Collateral (subject to clause (c) and clause (j) below) and the applicable Grantor shall cause the related certificates, if any, for such joint venture to be delivered to the Collateral Agent or the First Lien Collateral Agent within ninety (90) days from the Closing Date (or such longer period as the Collateral Agent or the First Lien Collateral Agent may agree), it being further understood that, in any event, the grant of the security interest described in Section 2.01 shall extend to the proceeds (of any kind) of any disposition of any such joint venture interests and all distributions thereon to the extent that the assignment of such proceeds or distributions are not prohibited, (b) applications filed in the USPTO to register trademarks or service marks on the basis of any Grantor’s “intent to use” such trademarks or service marks unless and until the filing of a “Statement of Use” or “Amendment to Allege Use” has been filed and accepted by the USPTO, whereupon such applications shall be automatically subject to the lien granted herein and deemed included in the Collateral, (c) any of the Securities in each foreign subsidiary of a Grantor in excess of sixty-five percent (65%) of the issued and outstanding Securities of such foreign subsidiary which to the extent applicable shall include any issued and outstanding Securities of such foreign subsidiary pledged under the Pledge Agreement so that collectively no more than 65% of such issued and outstanding stock is pledged notwithstanding the delivery by any Grantor to the Collateral Agent of Securities representing in excess of such percentage, (d) the Excluded Accounts, all Financial Assets credited to such Excluded Accounts and all Security Entitlements held in such Excluded Accounts, (e) the Grantors’ right, title or interest in or to any property or rights in and to which the Collateral Agent has been granted a perfected security interest pursuant to the Second Lien Aircraft Mortgage, the Second Lien SGR Security Agreement or the Second Lien Pledge Agreement, (f) any rights or property acquired under or in connection with a lease, license, contract, healthcare insurance receivable, property rights agreement or agreement to which Grantor is a party or any of its rights or interests thereunderlicense, or assets related thereto, if and for so long as the grant of such a security interest in such rights or lien property shall (i) constitute or result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of the any Grantor therein or (Bii) require the consent of a third party or constitute or result in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, healthcare insurance receivable, property rights agreement or agreement license (other than to the extent that any restriction on such assignment would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the U. S. Bankruptcy Code) or principles of equity), provided, however, provided that such security interest or lien the proceeds therefrom shall attach immediately at such time as not be excluded from the condition causing such abandonment, invalidation or unenforceability shall be remedied and definition of Collateral to the extent severable, shall attach immediately to any portion that the assignment of such leaseproceeds is not prohibited, license, contract, property rights or agreement, or such asset related thereto, that does not result in any of the consequences specified in (A) or (B) above; (iiig) any Inventory owned by the Grantor governmental permit or franchise that contains or utilizes a patent, trademark or copyright the use of which has been licensed to Grantor under a license described under clause (ii), which license prohibits Liens on or collateral assignments of such Inventorypermit or franchise, provided, however, (h) Goods owned by any Grantor on the date hereof or hereafter acquired that such security interest are subject to a Lien securing an obligation or lien shall attach Capitalized Lease permitted to such Inventory immediately at such time as be incurred pursuant to the condition prohibiting provisions of the Credit Agreement if the contract or other agreement in which such Lien shall be waived by is granted (or the licensor documentation providing for such obligation or Capitalized Lease) prohibits the creation of any other Lien on such license or otherwise remedied; and Goods, (ivi) any Intellectual Property, including without limitation, intent-to-use trademark applications, for which the creation by a Grantor of a security interest therein is prohibited without the consent of a third party (and such consent has not been obtained) or by law, or would otherwise result in the loss by any Grantor of any material rights therein (other than to the extent that any restriction on such assignment would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) or any relevant jurisdiction or any other applicable law or principles of equity), (j) the Excluded Equity Interests, (k) the Excluded Equipment, (l) Excluded SkyMiles Assets, (m) assets that are subject to Liens permitted by Section 6.01(a), (d), (j), (y) or (aa) of the Credit Agreement (or the replacement, extension or renewal of any such Lien pursuant to Section 6.01(s) of the Credit Agreement) and (n) real property interests, farm products, as-extracted collateral or timber to be cut (all of the foregoing, collectively, the “Excluded Property”).
Appears in 1 contract
Sources: Second Lien Term Loan and Guaranty Agreement (Delta Air Lines Inc /De/)
Excluded Property. Notwithstanding anything in Section 2.1 or elsewhere in this Agreement to the contraryforegoing, there is specifically excluded from the Security Interest, and the term Collateral “Collateral” shall not include: (i) any Equipment or Goods that is subject to a "purchase money security interest," as such term is now or hereafter defined in the UCC, which include (x) constitutes more than 65% of the voting Stock of each Foreign Subsidiary directly held by each Borrower if to do so would cause material adverse tax consequences for such Borrower; provided, that immediately upon any amendment of the IRC that would allow the pledge of a Permitted Lien under the Credit Agreement and greater percentage of such Stock without material adverse tax consequences, “Collateral” shall include such greater percentage of Stock of such Foreign Subsidiary from that time forward, (y) prohibits any intent to use application for a trademark that would otherwise be deemed invalidated, cancelled or abandoned due to the creation by the Grantor grant of a security interest therein, Lien thereon unless and until such time as the holder thereof has consented to the creation grant of such a security interest; Lien will not affect the validity of such trademark and (iiz) any rights or interests in any lease, license, contract, property rights or agreement, as such or the assets subject thereto if under the terms of such lease, license, contract, or agreement, or applicable law with respect thereto, the valid grant of a Lien therein or in such assets to the Agent is prohibited and such prohibition has not been or is not waived or the consent of the other party to such lease, license, contract, or agreement has not been or is not otherwise obtained or under applicable law such prohibition cannot be waived; provided, however, the foregoing exclusions shall in no way be construed (i) to which Grantor is a party apply if any such prohibition would be rendered ineffective under the Code (including Sections 9-406, 9-407 and 9-408 thereof) or other applicable law (including the United States bankruptcy code) or principles of equity, (ii) so as to limit, impair or otherwise affect the Agent’s unconditional continuing Liens upon any of its rights or interests thereunder, of Borrower in or assets related thereto, if and for so long as the grant of such security interest or lien shall constitute or result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of the Grantor therein or (B) in a breach or termination pursuant to the terms ofProceeds thereof (including proceeds from the sale, license, lease or a default underother disposition thereof), including monies due or to become due under any such lease, license, contract, property rights or agreement of any relevant jurisdiction or any other applicable law (including the U. S. Bankruptcy Code) any Accounts or principles of equityother Receivables Collateral), provided, however, that such security interest or lien shall attach immediately (iii) to apply at such time as the condition causing such abandonment, invalidation or unenforceability prohibition shall be remedied and and, to the extent severable, “Collateral” shall attach immediately to include any portion of such lease, license, contract, property rights agreement or agreement, or such asset related thereto, assets subject thereto that does not result in any of the consequences specified in (A) or (B) above; (iii) any Inventory owned by the Grantor that contains or utilizes a patent, trademark or copyright the use of which has been licensed to Grantor under a license described under clause (ii), which license prohibits Liens on such Inventory, provided, however, that such security interest or lien shall attach to such Inventory immediately at such time as the condition prohibiting such Lien shall be waived by the licensor of such license or otherwise remedied; and (iv) any Intellectual Propertyprohibition.
Appears in 1 contract
Excluded Property. Notwithstanding anything herein or in Section 2.1 or elsewhere in this Agreement any other Loan Document to the contrary, there is specifically excluded from in no event shall the Security InterestCollateral include, and no Grantor shall be deemed to have granted pursuant to Section 3 above a security interest in or Lien upon, any of the term Collateral shall following property of such Grantor (collectively, the “Excluded Property”): (a) any “intent to use” trademark application for which a statement of use has not include: been filed (ibut only until such statement is filed) or otherwise where the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable federal law; (b) any Excluded Accounts; (c) any Equipment or Goods owned by any Grantor that is subject to a "purchase money Lien expressly permitted under Section 6.2(h) of the Loan Agreement, if the valid grant of a security interest," as interest therein would violate, or otherwise be prohibited by, the terms of the applicable contract, lease, instrument or other agreement between such term Grantor and the holder of such Lien (other than any other Grantor or any Affiliate of any Grantor) and such restriction or prohibition has not been waived or the consent of the holder of such Lien has not otherwise been obtained; (d) any permit, contract, lease, license, instrument or other agreement (with any Person, other than any other Grantor or any Affiliate of any Grantor) that is now or hereafter defined in held by any Grantor to the UCC, which (x) constitutes extent that a Permitted Lien under the Credit Agreement and (y) prohibits the creation by the Grantor grant of a security interest thereintherein would, unless under the holder thereof has consented to the creation terms of such a security interest; (ii) any permit, contract, lease, license, contractinstrument or other agreement, property rights or agreement to which Grantor is a party or any of its rights or interests thereunder, or assets related thereto, if and for so long as the grant of such security interest or lien shall constitute or result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of the Grantor therein or (B) in a breach or termination pursuant to of the terms of, or constitute a default under, any or result in the termination of such permit, contract, lease, license, contractinstrument or other agreement, property rights or agreement require a consent not obtained of a third party (other than to the extent that (x) any such term would be rendered ineffective pursuant to Section 9-406, 9-407 or 9-408 of the UCC of any relevant jurisdiction, any other provision of the UCC of any relevant jurisdiction or any other applicable law (including the U. S. Bankruptcy Code) or principles of equity)equity or (y) any such contract, providedlease, howeverlicense, instrument or other agreement was entered into for the purpose of creating such breach, prohibition, restriction, default, termination or consent) or would be prohibited by any requirement of applicable law of a government authority or require a consent not obtained of any relevant government authority pursuant to such requirements of law; provided that (i) the Collateral shall in any event include the Proceeds of such security interest permit, contract, lease, license, instrument or lien shall attach immediately at other agreement and (ii) if requested by the Secured Party, each Grantor agrees to use its commercially reasonable efforts, for a period not to exceed 60 days from the date of such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied request and to the extent severabledoing so would not reasonably be expected to adversely affect such Grantor’s commercial relationships, shall attach immediately to any portion of obtain all requisite consents to enable such Grantor to provide a security interest in such permit, contract, lease, license, instrument or other agreement, and, in any event, immediately upon the ineffectiveness, lapse or termination of any such restriction or requirement, the Collateral will include, and such Grantor will be deemed to have granted a security interest in, such permit, contract, property rights lease, license, instrument or agreement, or such asset related thereto, that does not result in any other agreement as of the consequences specified date hereof as if such restriction or requirement had never been in (A) or (B) aboveeffect; (iiie) any Inventory owned Motor Vehicles and other assets subject to certificates of title (other than to the extent a security interest therein can be perfected by the Grantor that contains or utilizes filing of a patent, trademark or copyright financing statement under the use of which has been licensed to Grantor under a license described under clause (iiUCC), which license prohibits Liens on such Inventory, provided, however, that such security interest or lien shall attach to such Inventory immediately at such time as the condition prohibiting such Lien shall be waived by the licensor of such license or otherwise remedied; and (ivf) those assets as to which the Secured Party and the applicable Grantor shall jointly and reasonably determine, in writing, that the cost or other consequence of obtaining a Lien thereon or perfection thereof are excessive in relation to the benefit to the Secured Party of the security to be afforded thereby; provided that “Excluded Property” shall not include any Intellectual Proceeds, products, substitutions or replacements of any Excluded Property (unless such Proceeds, products, substitutions or replacements would constitute Excluded Property).
Appears in 1 contract
Excluded Property. Notwithstanding anything in Section 2.1 (a) any permit or elsewhere in this Agreement to the contrary, there is specifically excluded from the Security Interest, and the term Collateral shall not include: license or any contractual obligation entered into by any Obligor (i) that prohibits or requires the consent of any Equipment Person other than the Obligors or Goods that is subject Subsidiaries which has not been obtained as a condition to a "purchase money security interest," as such term is now or hereafter defined in the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) prohibits the creation by the Grantor such Obligor of a security interest therein, unless the holder thereof has consented to the creation of such a security interest; (ii) any lease, license, contract, property rights or agreement to which Grantor is a party or any of its rights or interests thereunder, or assets related thereto, if and for so long as the grant of such security interest or lien shall constitute or result in (A) the abandonment, invalidation or unenforceability of Lien on any right, title or interest in such permit, license or contractual obligation (other than customer contracts, master services agreements or work orders and Accounts which shall constitute part of the Grantor therein Collateral regardless) or (Bii) in a breach or termination pursuant to the terms ofextent that Applicable Law prohibits the creation of a Lien thereon, but only, with respect to the prohibition in (i) and (ii), to the extent, and for as long as, such prohibition is not terminated or a default under, any such lease, license, contract, property rights rendered unenforceable or agreement of any relevant jurisdiction otherwise deemed ineffective by the UCC or any other applicable law (including the U. S. Bankruptcy Code) or principles of equity)Applicable Law and any such consent has not been obtained, provided, however, that such security interest or lien the foregoing shall attach cease to be treated as “Excluded Property” (and shall constitute Collateral) immediately at such time as the condition causing such abandonment, invalidation contractual or unenforceability legal prohibition shall no longer be remedied applicable and to the extent severable, Agent’s Lien shall attach immediately to any portion of such leasepermit, license, contract, property rights license or agreement, or such asset related thereto, that does contract not result in any of subject to the consequences prohibitions specified in clauses (Ai) or (Bii) above; , (iiib) any Inventory Property owned by any Obligor that is subject to a Purchase Money Lien or a Capital Lease permitted under this Agreement to the Grantor that contains extent a security interest therein would violate such Permitted Purchase Money Debt or utilizes Capital Lease or create a patentright of termination in favor of the other party thereto (other than another Obligor or Subsidiary) after giving effect to the applicable anti-assignment provisions of the UCC or other Applicable Law, trademark or copyright (c) any other assets the use pledge of which has been licensed or grant of a security interest in which is prohibited by Applicable Law (to Grantor under a license described under clause (iithe extent effective after giving effect to the anti-assignment provisions of the UCC and other Applicable Law), which license prohibits Liens on such Inventory, provided, however, that such security interest or lien the foregoing shall attach cease to such Inventory be treated as “Excluded Property” (and shall constitute Collateral) immediately at such time as the condition prohibiting such legal prohibition shall no longer be applicable and to the extent severable, Agent’s Lien shall be waived by attach immediately to any portion of Property not subject to the licensor of such license or otherwise remedied; prohibitions, and (ivd) Excluded Accounts (other than of a type described in clause (a)(vi) of the definition thereof); provided, that, notwithstanding the foregoing in each case, “Excluded Property” shall not include any Intellectual proceeds, products, substitutions or replacements of Excluded Property, including monies due or to become due to an Obligor (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Property).
Appears in 1 contract
Sources: Loan, Security and Guaranty Agreement (Helix Energy Solutions Group Inc)
Excluded Property. Notwithstanding anything in Section 2.1 or elsewhere in this Agreement to the contrary, there is specifically excluded from the Security Interest, and the term Collateral shall not include: (i) any Equipment Excluded Account; (ii) any equipment or Goods goods that is subject to a "“purchase money security interest," as ” to the extent that such term is now or hereafter defined in the UCC, which purchase money security interest (x) constitutes a Permitted Lien under the Credit this Agreement and (y) prohibits the creation by the Grantor an Obligor of a junior security interest therein, unless the holder thereof has consented to the creation of such a junior security interest; (iiiii) any leaseEquity Interest in any Foreign Subsidiary (x) that is not a first-tier Subsidiary of an Obligor, (y) that the granting of a Lien thereon is prohibited by the laws of the jurisdiction of organization of such Foreign Subsidiary or (z) to the extent the same represents, for all Grantors in the aggregate, more than 65% of the total combined voting power of all classes of capital stock or similar Equity Interests of such Foreign Subsidiary which are entitled to vote; (iv) any general intangible, instrument, software, license, permit, lease, contract, property rights governmental approval or agreement franchise (but not the proceeds thereof), if the grant of a Lien in such general intangible, instrument, software, license, permit, lease, contract, governmental approval or franchise in the manner contemplated by the Loan Documents is prohibited by the terms of such general intangible, instrument, software, license, permit, lease, contract, governmental approval or franchise and would result in the termination of such general intangible, instrument, software, license, permit, lease, contract, governmental approval or franchise, but only to which Grantor the extent that any such prohibition is a party not rendered ineffective pursuant to the Uniform Commercial Code or any other Applicable Law or principles of equity; (v) upon the written consent of Agent, any Equity Interests in any pledged entity acquired on or after the Closing Date that is not a Subsidiary of an Obligor, if the terms of the Organic Documents of such pledged entity do not permit the grant of a security interest in such Equity Interests by the owner thereof or the applicable Obligor has been unable to obtain any approval or consent to the creation of a security interest therein which is required under such Organic Documents, (vi) any property or asset to the extent the burden of perfection would exceed the benefit to the Lenders as determined in writing by Agent in its Permitted Discretion (including without limitation the annotation of vehicle and other titles to reflect the Liens granted by the Loan Documents), (vii) any Excluded Real Estate described in clauses (a) or (b) of the definition thereof; provided, however, the foregoing exclusions shall in no way be construed (a) to apply if any such prohibition would be rendered ineffective under the UCC (including Sections 9-406, 9-407 and 9-408 thereof) or other Applicable Law (including the Bankruptcy Code) or principles of equity, (b) so as to limit, impair or otherwise affect Agent’s unconditional continuing Liens upon any rights or interests thereunder, or assets related thereto, if and for so long as the grant of such security interest or lien shall constitute or result in (A) the abandonment, invalidation or unenforceability of any right, title Obligor in or interest of the Grantor therein or (B) in a breach or termination pursuant to the terms ofproceeds thereof (including proceeds from the sale, license, lease or a default underother disposition thereof), including monies due or to become due under any such lease, license, contract, property rights or agreement of any relevant jurisdiction or any other applicable law (including the U. S. Bankruptcy Code) or principles of equityany Accounts), provided, however, that such security interest or lien shall attach immediately (c) to apply at such time as the condition causing such abandonment, invalidation or unenforceability prohibition shall be remedied and (including pursuant to a waiver thereof or a consent related thereto) and, to the extent severable, “Collateral” shall attach immediately to include any portion of such lease, license, contract, property rights agreement or agreement, or such asset related thereto, assets subject thereto that does not result in such prohibition. Excluded Real Estate: (a) the Colorado Property, (b) any of Real Estate acquired by an Obligor after the consequences specified in (A) Closing Date with an individual value less than $1,000,000 or (B) above; (iiic) any Inventory owned Real Estate acquired by an Obligor after the Grantor that contains Closing Date with an individual value equal to or utilizes greater than $1,000,000 with respect to which Agent elects in writing in its sole discretion not to require a patent, trademark or copyright the use of which has been licensed to Grantor under a license described under clause (ii), which license prohibits Liens on such Inventory, provided, however, that such security interest or lien shall attach to such Inventory immediately at such time as the condition prohibiting such Lien shall be waived by the licensor of such license or otherwise remedied; and (iv) any Intellectual PropertyMortgage.
Appears in 1 contract
Sources: Loan and Security Agreement (Hydrofarm Holdings Group, Inc.)
Excluded Property. Notwithstanding anything in Section 2.1 (a) any permit or elsewhere in this Agreement to the contrary, there is specifically excluded from the Security Interest, and the term Collateral shall not include: license or any contractual obligation entered into by any Obligor (i) that prohibits or requires the consent of any Equipment Person other than the Obligors or Goods that is subject Subsidiaries which has not been obtained as a condition to a "purchase money security interest," as such term is now or hereafter defined in the UCC, which (x) constitutes a Permitted Lien under the Credit Agreement and (y) prohibits the creation by the Grantor such Obligor of a security interest therein, unless the holder thereof has consented to the creation of such a security interest; (ii) any lease, license, contract, property rights or agreement to which Grantor is a party or any of its rights or interests thereunder, or assets related thereto, if and for so long as the grant of such security interest or lien shall constitute or result in (A) the abandonment, invalidation or unenforceability of Lien on any right, title or interest in such permit, license or contractual obligation (other than customer contracts, master services agreements or work orders and Accounts which shall constitute part of the Grantor therein Collateral regardless) or (Bii) in a breach or termination pursuant to the terms ofextent that Applicable Law prohibits the creation of a Lien thereon, but only, with respect to the prohibition in (i) and (ii), to the extent, and for as long as, such prohibition is not terminated or a default under, any such lease, license, contract, property rights rendered unenforceable or agreement of any relevant jurisdiction otherwise deemed ineffective by the UCC or any other applicable law (including the U. S. Bankruptcy Code) or principles of equity)Applicable Law and any such consent has not been obtained, provided, however, that such security interest or lien the foregoing shall attach cease to be treated as “Excluded Property” (and shall constitute Collateral) immediately at such time as the condition causing such abandonment, invalidation contractual or unenforceability legal prohibition shall no longer be remedied applicable and to the extent severable, Agent’s Lien shall attach immediately to any portion of such leasepermit, license, contract, property rights license or agreement, or such asset related thereto, that does contract not result in any of subject to the consequences prohibitions specified in clauses (Ai) or (Bii) above; , (iiib) any Inventory Property owned by any Obligor that is subject to a Purchase Money Lien or a Capital Lease permitted under this Agreement to the Grantor that contains extent a security interest therein would violate such Permitted Purchase Money Debt or utilizes Capital Lease or create a patentright of termination in favor of the other party thereto (other than another Obligor or Subsidiary) after giving effect to the applicable anti-assignment provisions of the UCC or other Applicable Law, trademark or copyright (c) any other assets the use pledge of which has been licensed or grant of a security interest in which is prohibited by Applicable Law (to Grantor under a license described under clause (iithe extent effective after giving effect to the anti-assignment provisions of the UCC and other Applicable Law), which license prohibits Liens on such Inventory, provided, however, that such security interest or lien the foregoing shall attach cease to such Inventory be treated as “Excluded Property” (and shall constitute Collateral) immediately at such time as the condition prohibiting such legal prohibition shall no longer be applicable and to the extent severable, Agent’s Lien shall be waived by attach immediately to any portion of Property not subject to the licensor of such license or otherwise remedied; prohibitions, and (ivd) Excluded Accounts (other than of a type described in clause (a)(vi) of the definition thereof); provided, that, notwithstanding the foregoing in each case, “Excluded Property” shall not include any proceeds, products, substitutions or replacements of Excluded Property, including monies due or to become due to an Obligor (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Property). Excluded Subsidiary: any of (a) the Excluded Guarantors, (b) any Intellectual PropertySubsidiary organized under the laws of a state other than the U.S., the U.K., the Grand Dutchy of Luxembourg or the Cayman Islands, and (c) with respect to Subsidiaries organized under the laws of the U.S., the U.K., the Grand Dutchy of Luxembourg or the Cayman Islands, Subsidiaries (other than Excluded Guarantors) that, as of the last day of the Fiscal Quarter of Helix most recently ended, had both revenues and assets that constitute less than 5.0% of the consolidated revenues and assets of Helix and its Subsidiaries in such jurisdiction (determined on a jurisdiction by jurisdiction basis).
Appears in 1 contract
Sources: Loan, Security and Guaranty Agreement (Helix Energy Solutions Group Inc)