Grant of Security Interest in the Collateral. Grantor hereby grants to the Lender, to secure the payment and performance in full of the Indebtedness of the Grantor, a security interest in and pledges and assigns to the Lender the following properties, assets and rights of the Grantor, consisting of all corporate and business assets, properties and rights of the Grantor wherever located, whether now owned or hereafter acquired or arising, and all proceeds, products, and accessions thereof, including but not limited to, the following (all of the same being hereinafter called the "Collateral"): (a) All Accounts, as extracted collateral, goods, general intangibles, chattel paper, documents, and Instruments, whether or not specifically assigned to Lender, including, without limitation, all Accounts, and all equipment (whether or not affixed to realty), motor vehicles, furniture and fixtures; (b) All guaranties, collateral, Liens on, or security interests in, real or personal property, leases, letter of credit rights and other rights, agreements, and property securing or relating to payment of Accounts; (c) All trademarks, trademark rights, patents, patent rights, licenses, permits, trade names, trade name rights, and approvals, including, without limitation, those listed on Schedule 4.1(c) of the Credit Agreement, together with all goodwill, income, royalties, damages and payments now and hereafter due and payable thereunder and with respect thereto. Lender does not currently intend to file financing statements on foreign trademarks or patents but reserves the right to do so in the future at Lender's discretion; (d) All contracts and agreements (whether written or oral) between Grantor and third parties (collectively, the "Assigned Agreements"); (e) The entire goodwill and all product lines of Grantor's business and other general intangibles of Grantor, including, without limitation, know-how, trade secrets, customer lists, proprietary information, inventions, methods, procedures and formulae in connection with the use of and symbolized by the trademarks of Grantor. (f) All books, records, ledger cards, data processing records, computer software, and other property at any time evidencing or relating to the Collateral; (g) All monies, securities (including a pledge of all stock owned in any Affiliate and other property now or hereafter held, or received by, or in transit to, Lender from or for Grantor, and all of Grantor's investment property and financial assets (as each is defined in the UCC)), deposit accounts, credits, and balances with Lender or any third party existing at any time; (h) All parts, accessories, attachments, special tools, additions, replacements, substitutions, and accessions to or for all of the foregoing; (i) Any and all other personal property of Grantor; and (j) All proceeds and products of all of the foregoing in any form, including, without limitation, amounts payable under any policies of insurance insuring the foregoing against loss or damage, and all increases and profits received from all of the foregoing. The Grantor and the Lender hereby acknowledge and agree that the security interest created hereby in the Collateral (i) constitutes continuing collateral security for all of the Indebtedness, whether now existing or hereafter arising and (ii) is not to be construed as an assignment of any Intellectual Property. Any of the foregoing to the contrary notwithstanding, the Collateral shall not include, and the security interest granted herein shall not attach to, any asset subject to a rule of law, statute or regulation or of a lease agreement or any general intangible (including a contract, permit, license or franchise) or a Permitted Lien, where the grant of such security interest would invalidate or constitute a breach or violation of any such rule of law, statute, regulation, lease agreement or general intangible or agreement or agreements creating or giving rise to such Permitted Lien, provided that the limitation set forth in this sentence shall (i) exist only for so long as such rule of law, statute, regulation, lease agreement or general intangible or agreement and the Permitted Lien created therein continue to be effective (and, upon the cessation, termination, expiration of such rule of law, statute, regulation, lease agreement or general intangible or Permitted Lien, or if any such rule of law, statute or regulation is no longer applicable, the security interest granted herein shall be deemed to have automatically attached to such asset) and (ii) not apply with respect to any asset if and to the extent that the prohibition or restriction on the security interest in and to such asset granted in this Agreement is rendered ineffective under Sections 9-406, 9-407, 9-408, or 9-409 of the UCC.
Appears in 1 contract
Grant of Security Interest in the Collateral. Grantor As collateral security for the Secured Obligations defined below, the Guarantor hereby grants to the LenderLender a lien on and security interest in, to secure and right of set-off against, and acknowledges and agrees that the payment Lender has a continuing lien on and performance in full security interest in, and right of set-off against, all right, title, and interest of the Indebtedness of the Grantor, a security interest in and pledges and assigns to the Lender the following properties, assets and rights of the Grantor, consisting of all corporate and business assets, properties and rights of the Grantor wherever locatedGuarantor, whether now owned or existing or hereafter created, acquired or arising, in and to all proceeds, products, and accessions thereofpersonal property of the Guarantor, including but not limited to, the following (all of the same being hereinafter called the "Collateral"):following:
(a) All Accounts;
(b) Chattel Paper;
(c) Instruments (including Promissory Notes);
(d) Documents;
(e) General Intangibles (including Payment Intangibles and Software, patents, trademarks, tradestyles, copyrights, and all other intellectual property rights, including all applications, registration, and licenses therefor, and all goodwill of the business connected therewith or represented thereby);
(f) Letter-of-Credit Rights;
(g) Supporting Obligations;
(h) Deposit Accounts;
(i) Investment Property (including certificated and uncertificated Securities, Securities Accounts, as extracted collateralSecurity Entitlements, goods, general intangibles, chattel paper, documentsCommodity Accounts, and InstrumentsCommodity Contracts);
(j) Inventory;
(k) Equipment (including all software, whether or not specifically assigned the same constitutes embedded software, used in the operation thereof);
(l) Fixtures;
(m) Rights to merchandise and other Goods (including rights to returned or repossessed Goods and rights of stoppage in transit) which is represented by, arises from, or relates to any of the foregoing;
(n) Monies, personal property, and interests in personal property of the Guarantor of any kind or description now held by the Lender or at any time hereafter transferred or delivered to, or coming into the possession, custody or control of, the Lender, or any agent or affiliate of the Lender, whether expressly as collateral security or for any other purpose (whether for safekeeping, custody, collection or otherwise), and all dividends and distributions on or other rights in connection with any such property;
(o) Supporting evidence and documents relating to any of the above-described property, including, without limitation, all Accountscomputer programs, disks, tapes and related electronic data processing media, and all equipment (whether or not affixed rights of the Guarantor to realty)retrieve the same from third parties, motor vehicleswritten applications, furniture credit information, account cards, payment records, correspondence, delivery and fixtures;
(b) All guarantiesinstallation certificates, collateralinvoice copies, Liens ondelivery receipts, or security interests in, real or personal property, leases, letter of credit rights notes and other rightsevidences of indebtedness, agreements, insurance certificates and property securing or relating to payment of Accounts;
(c) All trademarks, trademark rights, patents, patent rights, licenses, permits, trade names, trade name rights, and approvals, including, without limitation, those listed on Schedule 4.1(c) of the Credit Agreementlike, together with all goodwillbooks of account, incomeledgers, royalties, damages and payments now and hereafter due and payable thereunder and with respect thereto. Lender does not currently intend to file financing statements on foreign trademarks cabinets in which the same are reflected or patents but reserves the right to do so in the future at Lender's discretionmaintained;
(dp) All contracts Accessions and agreements (whether written or oral) between Grantor additions to, and third parties (collectivelysubstitutions and replacements of, any and all of the "Assigned Agreements");foregoing; and
(eq) The entire goodwill Proceeds and all product lines products of Grantor's business and other general intangibles of Grantor, including, without limitation, know-how, trade secrets, customer lists, proprietary information, inventions, methods, procedures and formulae in connection with the use of and symbolized by the trademarks of Grantor.
(f) All books, records, ledger cards, data processing records, computer software, and other property at any time evidencing or relating to the Collateral;
(g) All monies, securities (including a pledge of all stock owned in any Affiliate and other property now or hereafter held, or received by, or in transit to, Lender from or for Grantorforegoing, and all insurance of Grantor's investment property the foregoing and financial assets proceeds thereof; all of the foregoing being herein sometimes referred to as the “Collateral”. All terms which are used in this Agreement which are defined in the Uniform Commercial Code of the State of Nevada as in effect from time to time (“UCC”) shall have the same meanings herein as each is such terms are defined in the UCC)), deposit accountsunless this Agreement shall otherwise specifically provide. For purposes of this Agreement, creditsthe term "Receivables" means all rights to the payment of a monetary obligation, whether or not earned by performance, and balances with Lender or any third party existing at any time;
(h) All partswhether evidenced by an Account, accessoriesChattel Paper, attachmentsInstrument, special tools, additions, replacements, substitutions, and accessions to or for all of the foregoing;
(i) Any and all other personal property of Grantor; and
(j) All proceeds and products of all of the foregoing in any form, including, without limitation, amounts payable under any policies of insurance insuring the foregoing against loss or damage, and all increases and profits received from all of the foregoing. The Grantor and the Lender hereby acknowledge and agree that the security interest created hereby in the Collateral (i) constitutes continuing collateral security for all of the Indebtedness, whether now existing or hereafter arising and (ii) is not to be construed as an assignment of any Intellectual Property. Any of the foregoing to the contrary notwithstanding, the Collateral shall not include, and the security interest granted herein shall not attach to, any asset subject to a rule of law, statute or regulation or of a lease agreement or any general intangible (including a contract, permit, license or franchise) or a Permitted Lien, where the grant of such security interest would invalidate or constitute a breach or violation of any such rule of law, statute, regulation, lease agreement or general intangible or agreement or agreements creating or giving rise to such Permitted Lien, provided that the limitation set forth in this sentence shall (i) exist only for so long as such rule of law, statute, regulation, lease agreement or general intangible or agreement and the Permitted Lien created therein continue to be effective (and, upon the cessation, termination, expiration of such rule of law, statute, regulation, lease agreement or general intangible or Permitted LienGeneral Intangible, or if any such rule of law, statute or regulation is no longer applicable, the security interest granted herein shall be deemed to have automatically attached to such asset) and (ii) not apply with respect to any asset if and to the extent that the prohibition or restriction on the security interest in and to such asset granted in this Agreement is rendered ineffective under Sections 9-406, 9-407, 9-408, or 9-409 of the UCCotherwise.
Appears in 1 contract
Grant of Security Interest in the Collateral. Grantor hereby grants To secure the prompt and full payment and complete performance of all Secured Obligations of Debtor to the LenderLenders, to secure for valuable consideration, the payment receipt and performance in full sufficiency of the Indebtedness of the Grantorwhich are hereby acknowledged, a security interest in and Debtor hereby grants, pledges and assigns to the Lender Agent, for the benefit of the Lenders, a continuing security interest in, and a right of set off against, any and all right, title and interest of the Debtor in and to the following properties, assets and rights described property of the GrantorDebtor (collectively, consisting of all corporate and business assets, properties and rights of the Grantor wherever located, whether now owned or hereafter acquired or arising, and all proceeds, products, and accessions thereof, including but not limited to, the following (all of the same being hereinafter called the "Collateral"):
(a) All Accountsproperty of, as extracted collateralor for the account of, goodsthe Debtor now or hereafter coming into the possession, general intangiblesControl or custody of, chattel paperor in transit to, documentsthe Lenders or any agent or bailee for the Lenders or any parent, affiliate or subsidiary of the Lenders or any participant with the Lenders in the Loan (whether for safekeeping, deposit, collection, custody, pledge, transmission or otherwise), including all earnings, dividends, interest, or other rights in connection therewith and the products and proceeds therefrom, including the proceeds of insurance thereon; and
(b) The additional property of the Debtor, whether now existing or hereafter arising or acquired, and Instrumentswherever now or hereafter located, whether together with all additions and accessions thereto, substitutions for, and replacements, products and proceeds therefrom, and all of the Debtor's books and records and recorded data relating thereto (regardless of the medium of recording or not specifically assigned storage), together with all of the Debtor's right, title and interest in and to Lenderall computer software required to utilize, create, maintain and process any such records or data on electronic media, identified and set forth as follows:
(i) All Accounts and all Goods whose sale lease or other disposition by the Debtor has given rise to Accounts and have been returned to, or repossessed or stopped in transit by, the Debtor, or rejected or refused by an Account Debtor;
(ii) All Inventory, including, without limitation, all Accountsraw materials, work-in-process and all equipment (whether or not affixed to realty), motor vehicles, furniture and fixturesfinished goods;
(biii) All guaranties, collateral, Liens on, or security interests in, real or personal property, leases, letter of credit rights and other rights, agreements, and property securing or relating to payment of Accounts;
(c) All trademarks, trademark rights, patents, patent rights, licenses, permits, trade names, trade name rights, and approvalsGoods, including, without limitation, those listed on Schedule 4.1(cembedded software, Equipment, vehicles, furniture and Fixtures
(iv) of the Credit Agreement, together with all goodwill, income, royalties, damages All Software and payments now and hereafter due and payable thereunder and with respect thereto. Lender does not currently intend to file financing statements on foreign trademarks or patents but reserves the right to do so in the future at Lender's discretioncomputer programs;
(dv) All contracts Securities, Investment Property, Financial Assets and agreements (whether written or oral) between Grantor and third parties (collectively, the "Assigned Agreements")Deposit Accounts;
(evi) The entire goodwill All Chattel Paper, Electronic Chattel Paper, Instruments, Documents, Letter of Credit Rights, all proceeds of letters of credit, Health-care-insurance Receivables, Supporting Obligations, notes secured by real estate, Commercial Tort Claims and all product lines of Grantor's business and other general intangibles of Grantor, General Intangibles (including, without limitation, know-howpatents, trade secretstrademarks, customer listscopyrights, proprietary informationapplications therefore and licenses thereof, inventions, methods, procedures and formulae in connection with the use of and symbolized by the trademarks of GrantorPayment Intangibles);
(vii) All Commercial Tort Claims described on Schedule 1 hereto.
(fviii) All books, records, ledger cards, data processing records, computer software, insurance policies and other proceeds insuring the foregoing property at any time evidencing or relating to the Collateral;
(g) All monies, securities (including a pledge of all stock owned in any Affiliate and other property now or hereafter held, or received by, or in transit to, Lender from or for Grantor, and all of Grantor's investment property and financial assets (as each is defined in the UCC)), deposit accounts, credits, and balances with Lender or any third party existing at any time;
(h) All partspart thereof, accessories, attachments, special tools, additions, replacements, substitutions, and accessions to or for all of the foregoing;
(i) Any and all other personal property of Grantorincluding unearned premiums; and
(jix) All proceeds To the extent not otherwise included, all Accessions and products Proceeds of all of the foregoing in any form, including, without limitation, amounts payable under any policies of insurance insuring the foregoing against loss or damage, and all increases and profits received from all of the foregoing. The Grantor Debtor and the Lender Agent, on behalf of the Lenders, hereby acknowledge and agree that the security interest created hereby in the Collateral (i) constitutes continuing collateral security for all of the IndebtednessSecured Obligations, whether now existing or hereafter arising and (ii) is not to be construed as an assignment of any Intellectual Property. Any of the foregoing to the contrary notwithstandingcopyrights, the Collateral shall not includecopyright licenses, and the security interest granted herein shall not attach topatents, any asset subject to a rule of lawpatent licenses, statute trademarks or regulation or of a lease agreement trademark licenses (or any general intangible (including a contract, permit, license or franchise) or a Permitted Lien, where the grant of such security interest would invalidate or constitute a breach or violation of any such rule of law, statute, regulation, lease agreement or general intangible or agreement or agreements creating or giving rise to such Permitted Lien, provided that the limitation set forth in this sentence shall (i) exist only for so long as such rule of law, statute, regulation, lease agreement or general intangible or agreement and the Permitted Lien created therein continue to be effective (and, upon the cessation, termination, expiration of such rule of law, statute, regulation, lease agreement or general intangible or Permitted Lien, or if any such rule of law, statute or regulation is no longer applicable, the security interest granted herein shall be deemed to have automatically attached to such asset) and (ii) not apply with respect to any asset if and to the extent that the prohibition or restriction on the security interest in and to such asset granted in this Agreement is rendered ineffective under Sections 9-406, 9-407, 9-408, or 9-409 of the UCCapplications therefore).
Appears in 1 contract
Grant of Security Interest in the Collateral. Grantor hereby grants to the Lender, In order to secure the prompt payment and performance in full when due, whether by lapse of time, acceleration, mandatory prepayment or otherwise, of the Indebtedness Obligations, the Grantor hereby unconditionally grants, assigns, and pledge to the Collateral Agent, for the benefit of the Creditor first priority floating pledge in all of the existing and future assets of the Company, including a pledge of all of the share capital owned by the Company in each of the Subsidiaries, and including but not limited to the following assets (collectively, the “Collateral”):
(i) All of such Grantor’s (A) accounts; (B) securities entitlements, securities accounts, commodity accounts, commodity contracts and investment property; (C) deposit accounts; (D) pledged interests; (E) documents; (F) chattel paper; (G) inventory, including raw materials, work in process, or materials used or consumed in the Grantor’s business, items held for sale or lease; (H) commercial tort claims, if any; (I) letter of credit rights; (J) all cash and cash equivalents thereof, or other assets of such Grantor that now or hereafter come into possession, custody, or control of the Creditor and/or the Collateral Agent for the benefit of the Creditor.
(ii) All tangible personal property and assets leased or owned by the Grantor, a security interest and all Company Real Property as set forth in and pledges and assigns to the Lender the following properties, assets and rights Schedule 3(w)(ii) of the GrantorSPA, consisting of all corporate including without limitation any equipment and business assetsmachinery thereof, properties any fixture, structure, and rights of the Grantor wherever located, estate whether now owned or hereafter acquired or arisingarise and wherever located and all property of the Grantor now or hereafter in the Creditor’s possession or in transit to or from, or under the custody or control of, the Creditor or any affiliate thereof.
(iii) All rights and interests in estate and all contractual rights under agreements made by and among the Grantor and the Israel Land Authority and/or the Development Authority and/or the Jewish National Fund and/or any other party whether now owned or hereafter acquired or arise and wherever located.
(iv) All general intangibles of every kind and description, including payment intangibles, all existing and future choses in action, claims (including claims for indemnification or breach of warranty), books, records, contracts, tax and any other types of refunds, returned and unearned insurance premiums, rights and claims under insurance policies.
(v) Any of the securities, financial assets, options, shares, interests and banknotes withdrawn by or registered in the name of the Company, that are at any time and under any circumstances directly or indirectly exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any share capital or other security of the Company.
(vi) All authorized share capital of which are issued and outstanding and/or reserved for issuance pursuant to Convertible Securities (as defined in the SPA), and Grantor’s goodwill and reputation, as now owned or hereafter arise, provided, however, that there are no additional limitation with respect to the issuance of shares or other securities by the Grantor from the registered share capital that are not restricted under the SPA.
(vii) All rights, titles, and interests in all assets, proceeds, profits, incomes and other benefits, arising from or in connection with the Company Intellectual Property (as defined below), whether now owned or hereafter acquired, including any licenses and/or registrations rights provided to the Grantor in or with respect to Company Intellectual Property and all Listed Company Intellectual Property (as set forth in Schedule 3(x)(ii) of the SPA) registered or filed by, or on behalf of, the Company anywhere in the world that is owned by the Company or a Subsidiary, any unregistered trademarks used by the Company or its Subsidiaries, and includes the owner of record, date of application or issuance and relevant jurisdiction as to each, and all Company Intellectual Property Contracts (as set forth in Schedule 3(x)(iii) of the SPA), and all IP Assignment Agreements (as described in section 3(x)(vii) thereunder), including without limitations (the “Company Intellectual Property”): (A) trademarks and service marks, trade dress, product configurations, trade names and other indications of origin, applications or registrations in any jurisdiction pertaining to the foregoing and all goodwill associated therewith; (B) inventions, discoveries, improvements, ideas, know-how, formula methodology, processes, technology, software (including password unprotected interpretive code or source code, object code, development documentation, programming tools, drawings, specifications and data) and applications and patents in any jurisdiction pertaining to the foregoing, including re-issues, continuations, divisions, continuations-in-part, renewals or extensions; (C) trade secrets, including confidential information and the right in any jurisdiction to limit the use or disclosure thereof; (D) copyrights in writings, designs software, mask works or other works, applications or registrations in any jurisdiction for the foregoing and all moral rights related thereto; (E) database rights; (F) internet websites, domain names and applications and registrations pertaining thereto and all intellectual property used in connection with or contained in all versions of the Web sites; (G) rights under all agreements relating to the foregoing; (H) books and records pertaining to the foregoing; and (I) claims or causes of action arising out of or related to past, present or future infringement or misappropriation of the foregoing.
(viii) All cash and noncash proceeds and products including insurance proceeds or commercial tort claims of all of the foregoing property, or other tangible or intangible property resulting from the sale, lease, license, exchange, collection, or other disposition of any of the foregoing, the proceeds of any award in condemnation with respect to any of the foregoing, any rebates or refunds, whether for tax or otherwise, and all proceeds of any such proceeds, productsor any portion thereof or interest therein, and accessions the proceeds thereof, and all proceeds of any loss of, damage to, or destruction of the above, whether insured or not insured, and, to the extant not otherwise included, any indemnity, warranty, or guaranty payable by reason of loss or damage to, otherwise with respect of the foregoing. Without limiting the generality of the foregoing, such proceeds includes whatever is receivable or received when Investment (as defined in the Note) or proceeds are sold, exchanges, collected, or otherwise deposed of, whether such disposition is voluntary or involuntary, and includes proceeds of any indemnity or guaranty payable to the Grantor from time to time with respect to any of the Investment.
(ix) All rights, proceeds, and assets that exist now or hereafter in the deposit accounts, including but not limited toto any of the securities, money, and account opening documents and/or any other material document that were signed or will be signed by the Grantor with respect to the deposit accounts whether now owned or hereafter acquired (the “Deposit Money”). In the event that the Deposit Money, or any portion thereof or interest therein, is transferred into another Person’s account, for any reason, including as a result of renewal, termination, sale, exchange, collection, or other disposition of the Deposit Money, as a matter of applicable law or under the terms of another contract, the following (all terms of this Agreement shall apply on the transferred Deposit Money. For the avoidance of doubt, this Section 2(ix) will apply in case of further transfers of the same being hereinafter called the "Collateral"):
(a) All Accounts, as extracted collateral, goods, general intangibles, chattel paper, documents, and Instruments, whether or not specifically assigned to Lender, including, without limitation, all Accounts, and all equipment (whether or not affixed to realty), motor vehicles, furniture and fixtures;
(b) All guaranties, collateral, Liens on, or security interests in, real or personal property, leases, letter of credit rights and other rights, agreements, and property securing or relating to payment of Accounts;
(c) All trademarks, trademark rights, patents, patent rights, licenses, permits, trade names, trade name rights, and approvals, including, without limitation, those listed on Schedule 4.1(c) of the Credit Agreement, together with all goodwill, income, royalties, damages and payments now and hereafter due and payable thereunder and with respect theretoDeposit Money. Lender does not currently intend to file financing statements on foreign trademarks or patents but reserves the right to do so in the future at Lender's discretion;
(d) All contracts and agreements (whether written or oral) between Grantor and third parties (collectively, the "Assigned Agreements");
(e) The entire goodwill and all product lines of Grantor's business and other general intangibles of Grantor, including, without limitation, know-how, trade secrets, customer lists, proprietary information, inventions, methods, procedures and formulae in connection with the use of and symbolized by the trademarks of Grantor.
(f) All books, records, ledger cards, data processing records, computer software, and other property at any time evidencing or relating to the Collateral;
(g) All monies, securities (including a A first priority fixed pledge of all stock owned in any Affiliate and other property now or hereafter held, or received by, or in transit to, Lender from or for Grantor, and all of Grantor's investment property and financial assets (as each is defined in the UCC)), deposit accounts, credits, and balances with Lender or any third party existing at any time;
(h) All parts, accessories, attachments, special tools, additions, replacements, substitutions, and accessions to or for all of the foregoing;
(i) Any and all other personal property of Grantor; and
(j) All proceeds and products of all of the foregoing in any form, including, without limitation, amounts payable under any policies of insurance insuring the foregoing against loss or damage, and all increases and profits received from all of the foregoing. The Grantor and the Lender hereby acknowledge and agree that the security interest created hereby in the Collateral (i) constitutes continuing collateral security for all of the Indebtedness, whether now existing or hereafter arising and (ii) is not to be construed as an assignment of any Company Intellectual Property. Any of the foregoing to the contrary notwithstanding, the Collateral shall not include, and the security interest granted herein shall not attach to, any asset subject to a rule of law, statute or regulation or of a lease agreement or any general intangible (including a contract, permit, license or franchise) or a Permitted Lien, where the grant of such security interest would invalidate or constitute a breach or violation of any such rule of law, statute, regulation, lease agreement or general intangible or agreement or agreements creating or giving rise to such Permitted Lien, provided that the limitation set forth in this sentence shall (i) exist only for so long as such rule of law, statute, regulation, lease agreement or general intangible or agreement and the Permitted Lien created therein continue to be effective (and, upon the cessation, termination, expiration of such rule of law, statute, regulation, lease agreement or general intangible or Permitted Lien, or if any such rule of law, statute or regulation is no longer applicable, the security interest granted herein shall be deemed to have automatically attached to such asset) and (ii) not apply with respect to any asset if and to the extent that the prohibition or restriction on the security interest in and to such asset granted in this Agreement is rendered ineffective under Sections 9-406, 9-407, 9-408, or 9-409 of the UCC.
Appears in 1 contract
Grant of Security Interest in the Collateral. Grantor As collateral security for the Secured Obligations defined below, each Debtor hereby grants to the Lender, to secure Administrative Agent for the payment and performance in full benefit of the Indebtedness Secured Creditors a Lien on and security interest in, and right of set-off against, and acknowledges and agrees that the Administrative Agent has and shall continue to have for the benefit of the Grantor, Secured Creditors a continuing Lien on and security interest in in, and pledges right of set-off against, all right, title, and assigns to the Lender the following properties, assets and rights interest of the Grantor, consisting of all corporate and business assets, properties and rights of the Grantor wherever locatedeach Debtor, whether now owned or existing or hereafter created, acquired or arising, in and all proceeds, products, and accessions thereof, including but not limited to, the following (to all of the same being hereinafter called the "Collateral"):following:
(a) All Accounts, as extracted collateral, goods, general intangibles, chattel paper, documents, and Instruments, whether or not specifically assigned to Lender, including, without limitation, all Accounts, and all equipment (whether or not affixed to realty), motor vehicles, furniture and fixtures;
(b) All guaranties, collateral, Liens on, or security interests in, real or personal property, leases, letter of credit rights and other rights, agreements, and property securing or relating to payment of AccountsChattel Paper;
(c) All trademarks, trademark rights, patents, patent rights, licenses, permits, trade names, trade name rights, and approvals, including, without limitation, those listed on Schedule 4.1(c) of the Credit Agreement, together with all goodwill, income, royalties, damages and payments now and hereafter due and payable thereunder and with respect thereto. Lender does not currently intend to file financing statements on foreign trademarks or patents but reserves the right to do so in the future at Lender's discretionInstruments (including Promissory Notes);
(d) All contracts and agreements (whether written or oral) between Grantor and third parties (collectively, the "Assigned Agreements")Documents;
(e) The entire goodwill General Intangibles (including Payment Intangibles and Software, patents, trademarks, tradestyles, copyrights, and all product lines other intellectual property rights, including all applications, registration, and licenses therefor, and all goodwill of Grantor's the business and other general intangibles of Grantor, including, without limitation, know-how, trade secrets, customer lists, proprietary information, inventions, methods, procedures and formulae in connection with the use of and symbolized by the trademarks of Grantor.connected therewith or represented thereby);
(f) All books, records, ledger cards, data processing records, computer software, and other property at any time evidencing or relating to the CollateralLetter-of-Credit Rights;
(g) All monies, securities (including a pledge of all stock owned in any Affiliate and other property now or hereafter held, or received by, or in transit to, Lender from or for Grantor, and all of Grantor's investment property and financial assets (as each is defined in the UCC)), deposit accounts, credits, and balances with Lender or any third party existing at any timeSupporting Obligations;
(h) All partsDeposit Accounts;
(i) Investment Property (including certificated and uncertificated Securities, accessoriesSecurities Accounts, attachmentsSecurity Entitlements, special tools, additions, replacements, substitutionsCommodity Accounts, and accessions Commodity Contracts);
(j) Inventory;
(k) Equipment (including all software, whether or not the same constitutes embedded software, used in the operation thereof);
(l) Fixtures;
(m) Commercial Tort Claims (as described on Schedule F or on one or more supplements to this Agreement);
(n) Rights to merchandise and other Goods (including rights to returned or repossessed Goods and rights of stoppage in transit) which is represented by, arises from, or relates to any of the foregoing;
(o) Monies, personal property, and interests in personal property of such Debtor of any kind or description now held by any Secured Creditor or at any time hereafter transferred or delivered to, or coming into the possession, custody or control of, any Secured Creditor, or any agent or affiliate of any Secured Creditor, whether expressly as collateral security or for any other purpose (whether for safekeeping, custody, collection or otherwise), and all dividends and distributions on or other rights in connection with any such property;
(p) Supporting evidence and documents relating to any of the above-described property, including computer programs, disks, tapes and related electronic data processing media, and all rights of such Debtor to retrieve the same from third parties, written applications, credit information, account cards, payment records, correspondence, delivery and installation certificates, invoice copies, delivery receipts, notes and other evidences of indebtedness, insurance certificates and the like, together with all books of account, ledgers, and cabinets in which the same are reflected or maintained;
(q) Accessions and additions to, and substitutions and replacements of, any and all of the foregoing;
(ir) Any Proceeds and products of the foregoing, and all other personal property insurance of Grantorthe foregoing and proceeds thereof; and
(js) All proceeds and products of all of the foregoing in any form, including, without limitation, amounts payable under any policies of insurance insuring the foregoing against loss or damage, and all increases and profits received from all of the foregoing. The Grantor and the Lender hereby acknowledge and agree that the security interest created hereby in the Collateral (i) constitutes continuing collateral security for all of the Indebtedness, whether now existing or hereafter arising and (ii) is not to be construed as an assignment of any Intellectual Property. Any of the foregoing to the contrary notwithstanding, the Collateral shall not include, and the security interest granted herein shall not attach to, any asset subject to a rule of law, statute or regulation or of a lease agreement or any general intangible (including a contract, permit, license or franchise) or a Permitted Lien, where the grant other assets of such security interest would invalidate or constitute a breach or violation of any such rule of law, statute, regulation, lease agreement or general intangible or agreement or agreements creating or giving rise to such Permitted Lien, provided that the limitation set forth in this sentence shall (i) exist only for so long as such rule of law, statute, regulation, lease agreement or general intangible or agreement and the Permitted Lien created therein continue to be effective (and, upon the cessation, termination, expiration of such rule of law, statute, regulation, lease agreement or general intangible or Permitted Lien, or if any such rule of law, statute or regulation is no longer applicable, the security interest granted herein shall be deemed to have automatically attached to such asset) and (ii) not apply with respect to any asset if and Debtor to the extent that the prohibition or restriction on the security interest in and to such asset granted in this Agreement is rendered ineffective under Sections 9-406, 9-407, 9-408, or 9-409 of the UCC.not otherwise included above;
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Grant of Security Interest in the Collateral. Grantor hereby grants to the Lender, to To secure the prompt payment and performance in full when due, whether by lapse of time, acceleration, mandatory prepayment or otherwise, of the Indebtedness Secured Obligations, the Obligor hereby grants to the Administrative Agent, for the benefit of the Grantorholders of the Secured Obligations, a continuing security interest in, and a right to set off against, any and all right, title and interest of the Obligor in and pledges and assigns to the Lender the following properties, assets and rights all of the Grantor, consisting of all corporate and business assets, properties and rights of the Grantor wherever locatedfollowing, whether now owned or existing or owned, acquired, or arising hereafter acquired or arising, and all proceeds, products, and accessions thereof, including but not limited to(collectively, the following (all of the same being hereinafter called the "“Collateral"”):
(a) All Accountsall of the accounts specified below (collectively, the “Cash Collateral Account”):
(i) account number [ ] maintained by Banc of America Securities LLC in the name of the Obligor, for the benefit of the Obligor or as extracted collaterala collateral account of the Administrative Agent for the Obligor; and [Note: If the Cash Collateral Account is maintained with an affiliate of Banc of America Securities LLC, goodsthen this granting clause will be revised as necessary]
(ii) all successor and replacement accounts, general intangibles, chattel paper, documents, and Instruments, whether regardless of the numbers of such accounts or not specifically assigned to Lender, including, without limitation, all Accounts, and all equipment (whether or not affixed to realty), motor vehicles, furniture and fixturesthe offices at which such accounts are maintained;
(b) All guarantiesrights of the Obligor in connection with the Cash Collateral Account, collateral, Liens on, including any rights against any Securities Intermediary or security interests in, real or personal property, leases, letter of credit rights and other rights, agreements, and property securing or relating to payment of Accountsany clearing broker in connection with the Cash Collateral Account;
(c) All trademarksInvestment Property, trademark rightsSecurity Entitlements, patentsFinancial Assets, patent rightsSecurities, licensesDeposit Accounts, permitsInstruments, trade namesGeneral Intangibles, trade name rightsmoney, and approvals, including, without limitation, those listed on Schedule 4.1(c) certificates of the Credit Agreement, together with all goodwill, income, royalties, damages and payments now and hereafter due and payable thereunder and with respect thereto. Lender does not currently intend to file financing statements on foreign trademarks or patents but reserves the right to do so in the future at Lender's discretion;
(d) All contracts and agreements (whether written or oral) between Grantor and third parties (collectively, the "Assigned Agreements");
(e) The entire goodwill deposit and all product lines other investments or property of Grantor's business and other general intangibles of Grantor, including, without limitation, know-how, trade secrets, customer lists, proprietary information, inventions, methods, procedures and formulae in connection with the use of and symbolized by the trademarks of Grantor.
(f) All books, records, ledger cards, data processing records, computer software, and other property at any time evidencing or relating to the Collateral;
(g) All monies, securities (including a pledge of all stock owned in any Affiliate and other property sort now or hereafter held, maintained or received byadministered in, or in transit credited to, Lender from or for Grantor, and all of Grantor's investment property and financial assets (as each is defined in the UCC)), deposit accounts, credits, and balances with Lender or any third party existing at any time;
(h) All parts, accessories, attachments, special tools, additions, replacements, substitutions, and accessions to or for all of the foregoing;
(i) Any and all other personal property of GrantorCash Collateral Account; and
(jd) All proceeds all Proceeds of any and products of all of the foregoing in any form, including, without limitation, amounts payable under any policies of insurance insuring the foregoing against loss or damage, and all increases and profits received from all of the foregoing. The Grantor Obligor and the Lender Administrative Agent, on behalf of the holders of the Secured Obligations, hereby acknowledge and agree that the security interest created hereby in the Collateral (i) constitutes continuing collateral security for all of the IndebtednessSecured Obligations, whether now existing or hereafter arising arising. The Obligor hereby agrees that all rights, assets and (ii) is not property at any time held in or credited to be construed as an assignment of any Intellectual Property. Any of the foregoing to the contrary notwithstanding, the Securities Account constituting Collateral shall not include, and the security interest granted herein shall not attach to, any asset subject to a rule of law, statute or regulation or of a lease agreement or any general intangible (including a contract, permit, license or franchise) or a Permitted Lien, where the grant of such security interest would invalidate or constitute a breach or violation of any such rule of law, statute, regulation, lease agreement or general intangible or agreement or agreements creating or giving rise to such Permitted Lien, provided that the limitation set forth in this sentence shall (i) exist only for so long be treated as such rule of law, statute, regulation, lease agreement or general intangible or agreement and the Permitted Lien created therein continue to be effective (and, upon the cessation, termination, expiration of such rule of law, statute, regulation, lease agreement or general intangible or Permitted Lien, or if any such rule of law, statute or regulation is no longer applicable, the security interest granted herein shall be deemed to have automatically attached to such asset) and (ii) not apply with respect to any asset if and to the extent that the prohibition or restriction on the security interest in and to such asset granted in this Agreement is rendered ineffective under Sections 9-406, 9-407, 9-408, or 9-409 of the UCCFinancial Assets.
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Sources: Letter of Credit Facility Agreement (GT Solar International, Inc.)