Grant of Security Etc. (a) Each Grantor hereby grants to the Noteholder Collateral Agent, for the ratable benefit of the Secured Parties, a security interest in such Grantor’s right, title and interest in and to the following, in each case, as to each type of property described below, whether now owned or hereafter acquired by such Grantor, wherever located, and whether now or hereafter existing or arising (collectively, the “Collateral”): (i) all Accounts; (ii) all cash, Cash Equivalents and all Cash Collateral, whether such Cash Collateral is held in a Deposit Account or elsewhere; (iii) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper); (iv) all Commercial Tort Claims (including, without limitation, the Commercial Tort Claims set forth on Schedule 14 to the Perfection Certificate); (v) all Deposit Accounts, Securities Accounts, Commodities Accounts and all assets on deposit therein; (vi) all Documents; (vii) all Equipment; (viii) all Farm Products; (ix) all Fixtures; (x) all General Intangibles; (xi) all Goods; (xii) all Instruments; (xiii) all Inventory; (xiv) all Letter-of-Credit Rights, whether or not the respective letter of credit is evidenced by a writing (together with all Accounts, Chattel Paper, Instruments, Deposit Accounts, General Intangibles and other obligations of any kind, whether or not arising out of or in connection with the sale or lease of goods or the rendering of services and whether or not earned by performance, the “Receivables”; and all rights now or hereafter existing in and to all supporting obligations and in and to all security agreements, mortgages, Liens, leases, letters of credit and other contracts securing or otherwise relating to the Receivables, being the “Related Contracts”); (xv) the following (the “Security Collateral”): (A) all indebtedness from time to time owed to such Grantor, including, without limitation, all promissory notes or instruments, if any, evidencing such indebtedness, all indebtedness owed to such Grantor pursuant to each Intercompany Note and the instruments set forth on Schedule 8 to the Perfection Certificate (the “Pledged Debt”), and all interest, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Pledged Debt; (B) subject to the proviso below in this Section 1(a), all Equity Interests from time to time acquired, owned or held by such Grantor in any manner, including, without limitation, the Equity Interests owned by each Grantor set forth opposite such Grantor’s name on and otherwise described on Schedule 7A to the Perfection Certificate, and the certificates, if any, representing such shares or units or other Equity Interests (collectively, the “Pledged Equity”), and all dividends, distributions, return of capital, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares or other Equity Interests and all subscription warrants, rights or options issued thereon or with respect thereto; and (C) without limiting the foregoing, all Investment Property and all Financial Assets (including, without limitation, all securities, security entitlements and securities accounts), the certificates or instruments, if any, representing or evidencing such Investment Property or Financial Assets and all dividends, distributions, return of capital, interest, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect thereof or in exchange therefor and all subscription warrants, rights or options issued thereon or with respect thereto; (xvi) all contracts and agreements between any Grantor and one or more additional parties, including, without limitation, any Interest Rate Agreements (as defined in the Indenture), any Other Hedging Agreements, licensing agreements and any partnership agreements, joint venture agreements, limited liability company agreements, the Related Contracts and the IP Agreements, in each case, as such agreements may be amended, amended and restated, supplemented or otherwise modified from time to time (collectively, the “Assigned Agreements”), including, without limitation, (A) all rights of such Grantor to receive moneys due and to become due under or pursuant to the Assigned Agreements, (B) all rights of such Grantor to receive proceeds of any insurance, indemnity, warranty or guaranty with respect to the Assigned Agreements, (C) claims of such Grantor for damages arising out of or for breach of or default under the Assigned Agreements, to perform thereunder and to compel performance and otherwise exercise all remedies thereunder (all such Collateral being the “Agreement Collateral”); (xvii) the following (collectively, the “Intellectual Property Collateral”): (A) all Patents, Trademarks, Copyrights and Computer Software; (B) all Trade Secrets and all other intellectual, industrial and intangible property of any type, including, without limitation, industrial designs and mask works; (C) all tangible embodiments of the foregoing, all rights in the foregoing provided by international treaties or conventions, all rights corresponding thereto throughout the world and all other rights of any kind whatsoever of such Grantor accruing thereunder or pertaining thereto; and (D) any and all claims for damages and injunctive relief for past, present and future infringement, dilution, misappropriation, violation, misuse or breach with respect to any of the foregoing, with the right, but not the obligation, to ▇▇▇ for and collect, or otherwise recover, such damages; (xviii) all books and records (including, without limitation, customer lists, credit files, printouts and other computer output materials and records) of such Grantor pertaining to any of the Collateral; (xix) all other tangible and intangible personal property of whatever nature, whether or not covered by Article 9 of the UCC; (xx) all accessions to, substitutions for, and all replacements, products and cash and non-cash proceeds of the foregoing, including proceeds of and unearned premiums with respect to insurance policies, and claims against any Person for loss, damage or destruction of any Collateral; and (xxi) all proceeds of, collateral for, income, royalties and other payments now or hereafter due and payable with respect to, and Supporting Obligations relating to, any and all of the Collateral (including, without limitation, proceeds, collateral and supporting obligations that constitute property of the types described in clauses (i) through (xx) of this Section 1) and, to the extent not otherwise included, all payments under insurance (whether or not the Noteholder Collateral Agent is the loss payee thereof), or any indemnity, warranty or guaranty, payable by reason of loss of or damage to or otherwise with respect to any of the foregoing Collateral; provided that, notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in any Excluded Asset. (b) The security interest of the Noteholder Collateral Agent under this Agreement extends to all Collateral which any Grantor may acquire, or with respect to which any Grantor may obtain rights, at any time during the term of this Agreement. (c) Notwithstanding anything to the contrary contained in this Section 1 or elsewhere in this Agreement, each Grantor and the Noteholder Collateral Agent (on behalf of the Secured Parties) acknowledge and agree that: (i) the security interest granted pursuant to this Agreement (including pursuant to this Section 1) to the Noteholder Collateral Agent for the benefit of the Secured Parties (A) in the Noteholder First Lien Collateral, shall be a First Priority Lien and (B) in the Revolving Facility First Lien Collateral, shall be a Second Priority Lien subordinated and subject to the security interest granted to the Bank Collateral Agent for the benefit of the Revolving Facility Secured Parties in the Revolving Facility First Lien Collateral on the terms and conditions set forth in the Revolving Facility Documents; and (ii) the Revolving Facility Secured Parties’ security interests in the Collateral constitute security interests separate and apart (and of a different class and claim) from the Secured Parties’ security interests in the Collateral.
Appears in 1 contract
Sources: Collateral Agreement (Affinia Group Intermediate Holdings Inc.)
Grant of Security Etc. (a) Each Grantor hereby grants to the Noteholder Collateral Agent, for the ratable benefit of the Secured Parties, a security interest in in, such Grantor’s right, title and interest in and to the following, in each case, as to each type of property described below, whether now owned or hereafter acquired by such Grantor, wherever located, and whether now or hereafter existing or arising (collectively, the “Collateral”):
(i) all Accounts;
(ii) all cash, Cash Equivalents and all Cash Collateral, whether such Cash Collateral is held in a Deposit Account or elsewhere;
(iii) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(iv) all Commercial Tort Claims (including, without limitation, the Commercial Tort Claims set forth on Schedule 14 to the Perfection Certificate);
(v) all Deposit Accounts, Securities Accounts, Commodities Accounts and all assets on deposit therein;
(vi) all Documents;
(vii) all Equipment;
(viii) all Farm Products;
(ix) all Fixtures;
(x) all General Intangibles;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Inventory;
(xiv) all Letter-of-Credit Rights, whether or not the respective letter of credit is evidenced by a writing (together with all Accounts, Chattel Paper, Instruments, Deposit Accounts, General Intangibles and other obligations of any kind, whether or not arising out of or in connection with the sale or lease of goods or the rendering of services and whether or not earned by performance, the “Receivables”; and all rights now or hereafter existing in and to all supporting obligations and in and to all security agreements, mortgages, Liens, leases, letters of credit and other contracts securing or otherwise relating to the Receivables, being the “Related Contracts”);
(xv) the following (the “Security Collateral”):
(A) all indebtedness from time to time owed to such Grantor, including, including without limitation, all promissory notes or instruments, if any, evidencing such indebtedness, all indebtedness owed to such Grantor pursuant to each Intercompany Note and the instruments set forth on Schedule 8 to the Perfection Certificate (the “Pledged Debt”), and all interest, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Pledged Debt;
(B) subject to the proviso below in this Section 1(a), all Equity Interests from time to time acquired, owned or held by such Grantor in any manner, including, without limitation, the Equity Interests owned by each Grantor set forth opposite such Grantor’s name on and otherwise described on Schedule 7A to the Perfection Certificate, and the certificates, if any, representing such shares or units or other Equity Interests (collectively, the “Pledged Equity”), and all dividends, distributions, return of capital, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares or other Equity Interests and all subscription warrants, rights or options issued thereon or with respect thereto; and
(C) without limiting the foregoing, all Investment Property and all Financial Assets (including, without limitation, all securities, security entitlements and securities accounts), the certificates or instruments, if any, representing or evidencing such Investment Property or Financial Assets and all dividends, distributions, return of capital, interest, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect thereof of or in exchange therefor and all subscription warrants, rights or options issued thereon or with respect thereto;
(xvi) all contracts and agreements between any Grantor and one or more additional parties, including, without limitation, any Interest Rate Protection Agreements (as defined in the IndentureCredit Agreement), any Other Hedging AgreementsAgreements (as defined in the Credit Agreement), licensing agreements and any partnership agreements, joint venture agreements, limited liability company agreements, the Related Contracts and the IP Agreements, in each case, as such agreements may be amended, amended and restated, supplemented or otherwise modified from time to time (collectively, the “Assigned Agreements”), including, without limitation, (Ai) all rights of such Grantor to receive moneys due and to become due under or pursuant to the Assigned Agreements, (Bii) all rights of such Grantor to receive proceeds of any insurance, indemnity, warranty or guaranty with respect to the Assigned Agreements, (Ciii) claims of such Grantor for damages arising out of or for breach of or default under the Assigned Agreements, to perform thereunder and to compel performance and otherwise exercise all remedies thereunder (all such Collateral being the “Agreement Collateral”);
(xvii) the following (collectively, the “Intellectual Property Collateral”):
(A) all Patents, Trademarks, Copyrights and Computer Software;
(B) all Trade Secrets and all other intellectual, industrial and intangible property of any type, including, without limitation, industrial designs and mask works;
(C) all tangible embodiments of the foregoing, all rights in the foregoing provided by international treaties or conventions, all rights corresponding thereto throughout the world and all other rights of any kind whatsoever of such Grantor accruing thereunder or pertaining thereto; and
(D) any and all claims for damages and injunctive relief for past, present and future infringement, dilution, misappropriation, violation, misuse or breach with respect to any of the foregoing, with the right, but not the obligation, to ▇▇▇ for and collect, or otherwise recover, such damages;
(xviii) all books and records (including, without limitation, customer lists, credit files, printouts and other computer output materials and records) of such Grantor pertaining to any of the Collateral;
(xix) and all other tangible and intangible personal property of whatever nature, nature whether or not covered by Article 9 of the UCC;
(xx) all accessions to, substitutions for, and all replacements, products products, and cash and non-cash proceeds of the foregoing, including proceeds of and unearned premiums with respect to insurance policies, and claims against any Person for loss, damage or destruction of any Collateral; and;
(xxi) all proceeds of, collateral for, income, royalties and other payments now or hereafter due and payable with respect to, to and Supporting Obligations relating to, any and all of the Collateral (including, without limitation, proceeds, collateral and supporting obligations that constitute property of the types described in clauses (i) through (xx) of this Section 1) and, to the extent not otherwise included, all payments under insurance (whether or not the Noteholder Collateral Agent is the loss payee thereof), or any indemnity, warranty or guaranty, payable by reason of loss of or damage to or otherwise with respect to any of the foregoing Collateral; provided that, notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in any Excluded Asset.
(b) The security interest of the Noteholder Collateral Agent under this Agreement extends to all Collateral which any Grantor may acquire, or with respect to which any Grantor may obtain rights, at any time during the term of this Agreement.
(c) Notwithstanding anything to the contrary contained in this Section 1 or elsewhere in this Agreement, each Grantor and the Noteholder Collateral Agent (on behalf of the Secured Parties) acknowledge acknowledges and agree agrees that:
(i) the security interest granted pursuant to this Agreement (including pursuant to this Section 1) to the Noteholder Collateral Agent for the benefit of the Secured Parties (A) in the Noteholder First Lien Collateral, shall be a First Priority Lien and (Bi) in the Revolving Facility First Lien Collateral, shall be a First Priority Lien (as defined in the Credit Agreement) and (ii) in the Noteholder First Lien Collateral, shall be a Second Priority Lien (as defined in the Credit Agreement) subordinated and subject to the security interest granted to the Bank Noteholder Collateral Agent for the benefit of the Revolving Facility Noteholder Secured Parties in the Revolving Facility Noteholder First Lien Collateral on the terms and conditions set forth in the Revolving Facility DocumentsNoteholder Documents (as defined in the Intercreditor Agreement); and
(ii) the Revolving Facility Noteholder Secured Parties’ security interests in the Collateral constitute security interests separate and apart (and of a different class and claim) from the Secured Parties’ security interests in the Collateral.
Appears in 1 contract
Sources: Security Agreement (Affinia Group Intermediate Holdings Inc.)
Grant of Security Etc. (a) Each Grantor hereby grants to the Noteholder Collateral Agent, for the ratable benefit of the Secured Parties, a security interest in in, such Grantor’s right, title and interest in and to the following, in each case, as to each type of property described below, whether now owned or hereafter acquired by such Grantor, wherever located, and whether now or hereafter existing or arising (collectively, the “Collateral”):
(i) all Accounts;
(ii) all cash, Cash Equivalents and all Cash Collateral, whether such Cash Collateral is held in a Deposit Account or elsewhere;
(iii) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(iv) all Commercial Tort Claims (including, without limitation, the Commercial Tort Claims set forth on Schedule 14 to the Perfection Certificate);
(v) all Deposit Accounts, Securities Accounts, Commodities Accounts and all assets on deposit therein;
(vi) all Documents;
(vii) all Equipment;
(viii) all Farm Products;
(ix) all Fixtures;
(x) all General Intangibles;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Inventory;
(xiv) all Letter-of-Credit Rights, whether or not the respective letter of credit is evidenced by a writing (together with all Accounts, Chattel Paper, Instruments, Deposit Accounts, General Intangibles and other obligations of any kind, whether or not arising out of or in connection with the sale or lease of goods or the rendering of services and whether or not earned by performance, the “Receivables”; and all rights now or hereafter existing in and to all supporting obligations and in and to all security agreements, mortgages, Liens, leases, letters of credit and other contracts securing or otherwise relating to the Receivables, being the “Related Contracts”);
(xv) the following (the “Security Collateral”):
(A) all indebtedness from time to time owed to such Grantor, including, without limitation, all promissory notes or instruments, if any, evidencing such indebtedness, all indebtedness owed to such Grantor pursuant to each Intercompany Note and the instruments set forth on Schedule 8 to the Perfection Certificate (the “Pledged Debt”), and all interest, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Pledged Debt;
(B) subject to the proviso below in this Section 1(a), all Equity Interests from time to time acquired, owned or held by such Grantor in any manner, including, without limitation, the Equity Interests owned by each Grantor set forth opposite such Grantor’s name on and otherwise described on Schedule 7A to the Perfection Certificate, and the certificates, if any, representing such shares or units or other Equity Interests (collectively, the “Pledged Equity”), and all dividends, distributions, return of capital, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares or other Equity Interests and all subscription warrants, rights or options issued thereon or with respect thereto; and
(C) without limiting the foregoing, all Investment Property and all Financial Assets (including, without limitation, all securities, security entitlements and securities accounts), the certificates or instruments, if any, representing or evidencing such Investment Property or Financial Assets and all dividends, distributions, return of capital, interest, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect thereof or in exchange therefor and all subscription warrants, rights or options issued thereon or with respect thereto;
(xvi) all contracts and agreements between any Grantor and one or more additional parties, including, without limitation, any Interest Rate Agreements (as defined in the Indenture), any Other Hedging Agreements, licensing agreements and any partnership agreements, joint venture agreements, limited liability company agreements, the Related Contracts and the IP Agreements, in each case, as such agreements may be amended, amended and restated, supplemented or otherwise modified from time to time (collectively, the “Assigned Agreements”), including, without limitation, (A) all rights of such Grantor to receive moneys due and to become due under or pursuant to the Assigned Agreements, (B) all rights of such Grantor to receive proceeds of any insurance, indemnity, warranty or guaranty with respect to the Assigned Agreements, (C) claims of such Grantor for damages arising out of or for breach of or default under the Assigned Agreements, to perform thereunder and to compel performance and otherwise exercise all remedies thereunder (all such Collateral being the “Agreement Collateral”);
(xvii) the following (collectively, the “Intellectual Property Collateral”):
(A) all Patents, Trademarks, Copyrights and Computer Software;
(B) all Trade Secrets and all other intellectual, industrial and intangible property of any type, including, without limitation, industrial designs and mask works;
(C) all tangible embodiments of the foregoing, all rights in the foregoing provided by international treaties or conventions, all rights corresponding thereto throughout the world and all other rights of any kind whatsoever of such Grantor accruing thereunder or pertaining thereto; and
(D) any and all claims for damages and injunctive relief for past, present and future infringement, dilution, misappropriation, violation, misuse or breach with respect to any of the foregoing, with the right, but not the obligation, to ▇▇▇ for and collect, or otherwise recover, such damages;
(xviii) all books and records (including, without limitation, customer lists, credit files, printouts and other computer output materials and records) of such Grantor pertaining to any of the Collateral;
(xix) all other tangible and intangible personal property of whatever nature, whether or not covered by Article 9 of the UCC;
(xx) all accessions to, substitutions for, and all replacements, products and cash and non-cash proceeds of the foregoing, including proceeds of and unearned premiums with respect to insurance policies, and claims against any Person for loss, damage or destruction of any Collateral; and
(xxi) all proceeds of, collateral for, income, royalties and other payments now or hereafter due and payable with respect to, and Supporting Obligations relating to, any and all of the Collateral (including, without limitation, proceeds, collateral and supporting obligations that constitute property of the types described in clauses (i) through (xx) of this Section 1) and, to the extent not otherwise included, all payments under insurance (whether or not the Noteholder Collateral Agent is the loss payee thereof), or any indemnity, warranty or guaranty, payable by reason of loss of or damage to or otherwise with respect to any of the foregoing Collateral; provided that, notwithstanding anything to the contrary in this Agreement, this Agreement shall not constitute a grant of a security interest in any Excluded Asset.
(b) The security interest of the Noteholder Collateral Agent under this Agreement extends to all Collateral which any Grantor may acquire, or with respect to which any Grantor may obtain rights, at any time during the term of this Agreement.
(c) Notwithstanding anything to the contrary contained in this Section 1 or elsewhere in this Agreement, each Grantor and the Noteholder Collateral Agent (on behalf of the Secured Parties) acknowledge and agree that:
(i) the security interest granted pursuant to this Agreement (including pursuant to this Section 1) to the Noteholder Collateral Agent for the benefit of the Secured Parties (A) in the Noteholder First Lien Collateral, shall be a First Priority Lien and (B) in the Revolving Facility First Lien Collateral, shall be a Second Priority Lien subordinated and subject to the security interest granted to the Bank Collateral Agent for the benefit of the Revolving Facility Secured Parties in the Revolving Facility First Lien Collateral on the terms and conditions set forth in the Revolving Facility Documents; and
(ii) the Revolving Facility Secured Parties’ security interests in the Collateral constitute security interests separate and apart (and of a different class and claim) from the Secured Parties’ security interests in the Collateral.
Appears in 1 contract