Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the Obligations, each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured Parties, a continuing security interest in all of the right, title and interest of such Grantor in, to and under all of the following personal property (and all rights therein) of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located: (i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible)); (ii) all cash and Money; (iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13 (iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto; (v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper); (vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below; (vii) All Contracts, together with all Contract Rights arising thereunder; (viii) all Documents; (ix) all Equipment; (x) all Fixtures; (xi) all Goods; (xii) all Instruments; (xiii) all Intellectual Property; (xiv) all Promissory Notes; (xv) all Inventory; (xvi) all Investment Property; (xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing); (xviii) all General Intangibles; (xix) all Payment Intangibles (including corporate and other tax refunds); (xx) all Permits; (xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing); (xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and (xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”). (b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”); (c) The security interest of the 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. (d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith. (e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Credit Agreement (Ciena Corp)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agentpledge, and does hereby pledge hypothecate and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors, a continuing security interest in in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or (all of the following being collectively called, the "Collateral"): all Accounts, all Chattel Paper, all Contracts, together with all Contract Rights arising and regardless of where located:
thereunder, all Deposit Accounts (i) each and every Account (including any and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
(iii) the Cash Collateral Account Accounts) and all monies, securities, Instruments instruments and other investments deposited or required to be deposited in such Deposit Accounts, all Documents, all Equipment, all General Intangibles, all Goods, all Instruments, all Insurance, all Intellectual Property, all Inventory, all Investment Related Property, all Letter of Credit Rights, all letters of credit, all Marks, together with the Cash Collateral Accountregistrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks, all Money, all Patents and Copyrights and all reissues, renewals or extensions thereof, all Receivables, all computer programs of such Assignor and all intellectual property rights therein and all other Proprietary Information of such Assignor, including, but not limited to, Trade Secrets Rights, all Supporting Obligations (to the extent not otherwise included above), together with (i) all substitutions and replacements for and products of any of the foregoing; \\DC - 066299/000158000182 - 9848070 v13
(ii) in the case of all Goods, all accessions; (iii) all accessories, attachments, parts, equipment and repairs now or hereafter attached or affixed to or used in connection with any Goods; (iv) all (x) Deposit Accountswarehouse receipts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds bills of lading and other evidences documents of payments held therein title now or credited thereto, (y) Securities Accounts hereafter covering such Goods; and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the Collateral include and no Assignor shall be deemed to have granted a security interests and Liens granted under Section 1.1(a) hereof attach tointerest in, and the term “Collateral” (and the component terms thereof) shall not includeany of Assignor's right, title or interest in (i) any propertyIntellectual Property (collectively, interest or other rights for so long as the "Non-Assignable Intellectual Property") to the extent that the grant of such security interest shall would constitute or result in the abandonment or invalidation thereof or the unenforceability of any right, title or interest of any Assignor therein; (Aii) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, contract or agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any the grant of such term specified in clause security interest is prohibited by or would constitute a default under or a termination of, such license, contract or agreement (A) or (B) above is rendered ineffective pursuant to Section 9each, a "Non-406assignable Contract"), 9 407, 9-408 or 9-409 of and the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other then-terms restricting such grant are enforceable under applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the UCC section 9-406), it being understood that each Assignor hereby agrees to use all reasonable efforts to obtain all requisite consent of a Governmental Authority to permit the enable Assignor to grant of a security interest therein (in such asset and, in any event, immediately upon the ineffectiveness, lapse or termination of any such restriction, the Collateral shall include, and such consent has not been obtained); provided, however, that such Assignor shall be deemed to have granted a security interest shall attach immediately at in, all such time rights and interests as the condition causing if such abandonment, invalidation, unenforceability breach restriction had never been in effect; or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury of the outstanding capital stock of a Grantor or other Margin Stock, Foreign Subsidiary in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice excess of 65% of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time voting power of delivery all classes of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability capital stock of such application under applicable federal law (other than entitled to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);vote.
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security Agreement (Infousa Inc)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Applicable Obligations, each Grantor Assignor does hereby sell, assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors as their interests may appear, a continuing security interest in in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Receivable;
(ii) all cash and MoneyContracts, together with all Contract Rights arising thereunder;
(iii) all Inventory;
(iv) all Equipment;
(v) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks;
(vi) the Cash Collateral Account established for such Assignor and all moniesmoneys, securities and instruments deposited or required to be deposited in such Cash Collateral Account;
(vii) all Patents and Copyrights and all reissues, renewals or extensions thereof;
(viii) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including, but not limited to, Trade Secrets Rights;
(ix) all insurance policies;
(x) all other Goods, General Intangibles, Chattel Paper (including without limitation all Tangible Chattel Paper and all Electronic Chattel Paper), Documents and Instruments;
(xi) all Permits;
(xii) all cash;
(xiii) all Commercial Tort Claims;
(xiv) all Deposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all moneys, securities, Instruments and other investments deposited or required to be deposited in any of the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notesforegoing;
(xv) all Inventory;
(xvi) all Investment Property;
(xviixvi) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xvii) all Software and all Software licensing rights, all writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and licenses, and all recorded data of any kind or nature, regardless of the medium of recording;
(xviii) all General Intangibles;Supporting Obligations; and
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, including this clause (xix), collectively, the “"Collateral”"); provided that the Collateral that secures the Existing Senior Notes Obligations and the Refinancing Senior Notes Obligations of a Specified Assignor shall be limited to Collateral owned by such Specified Assignor consisting of any shares of stock, indebtedness or other obligations of a Subsidiary of Parent or of any Principal Property of any Specified Assignor (the "Designated Collateral"), all of which Collateral shall also ratably secure all other Applicable Obligations of such Specified Assignor, and the Collateral Proceeds with respect to any item of Collateral owned by a Specified Assignor that are to be applied to the Existing Senior Notes Obligations or to the Refinancing Senior Notes Obligations shall be limited to Collateral Proceeds from the sale, other disposition of or other realization upon, and other moneys received in respect of, the Designated Collateral of such Specified Assignor, with such Collateral Proceeds to also be applied ratably to all other Applicable Obligations of such Specified Assignor.
(b) Notwithstanding anything contained herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “"Collateral” (and the component terms thereof) " shall not includeinclude any Copyright, (i) any property▇▇▇▇, interest Patent, Trade Secret, computer program or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant Software to the extent such property is subject to a license or agreement the terms of which prohibit an assignment of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation granting of a security interest in, such Assignor's rights thereunder (other than to the extent that any or such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the Assignor's grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge this Agreement or the corresponding provision of would give any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock party thereto (other than treasury stocksuch Assignor) the right to terminate its obligations thereunder; provided that would constitute Collateral absent this proviso at the time foregoing limitation shall not affect, limit, restrict or impair the grant by an Assignor of delivery of any financial statements required to be delivered the security interest pursuant to Section 6.01(a) this Agreement in any account or 6.01(b) of the Credit Agreement andany money or other amounts due or to become due under any such Copyright, thereafter▇▇▇▇, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxesPatent, employment taxesTrade Secret, computer program or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (Software or such similar term) under license or agreement governing the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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 Agreementsame.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditors (and does hereby confirm its prior assignment, transfer, pledge and grant to the Collateral Agent, for the benefit of the Secured Creditors (other than the Additional First Lien Creditors) pursuant to the Original Security Agreement, of), a continuing security interest in all of the right, title and interest interest, powers, remedies, privileges and other benefits of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required Claims;
(vi) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including but not limited to be provided pursuant to Section 3.1 belowDomain Names and Trade Secret Rights;
(vii) All all Contracts, together with all Contract Rights arising thereunder;
(viii) all DocumentsCopyrights, together with all causes of action arising prior to or after the date hereof for infringement of any of the Copyrights or unfair competition regarding the same;
(ix) all Equipment;
(x) all FixturesDeposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(xi) all GoodsDocuments;
(xii) all InstrumentsGeneral Intangibles;
(xiii) all Intellectual PropertyGoods;
(xiv) all Promissory NotesInstruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General IntangiblesMarks, together with the registrations and right to all renewals thereof, the goodwill of the business of such Assignor symbolized by the Marks and all causes of action arising prior to or after the date hereof for infringement of any of the Marks or unfair competition regarding the same;
(xix) all Payment Intangibles (including corporate and other tax refunds)Patents, together with all causes of action arising prior to or after the date hereof for infringement of any of the Patents or unfair competition regarding the same;
(xx) all Permits;
(xxi) all books Software and records (including all booksSoftware licensing rights, databasesall writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and recordslicenses, whether tangible and all recorded data of any kind or electronicnature, which contain any information relating to any regardless of the foregoing)medium of recording;
(xxii) with respect to each right to payment or performance included in each of the foregoing, any all Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationObligations; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
; provided that (bx) Notwithstanding anything herein no Assignor shall be required to the contrary, grant a security interest hereunder in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, (and the term “Collateral” (and the component terms thereof) shall not include, ) (i) any property, interest or other rights for Excluded Account (so long as same remains an “Excluded Account” in accordance with the grant of such security interest shall constitute or result in definition thereof), (Aii) a breach or termination pursuant to the terms of, or a default under, any General Intangible, leasecontract, license, agreement, instrument, document, permit or franchise that validly prohibits, restricts or requires the consent not obtained of a third party for the creation by such Assignor of a security interest in such contract, agreement or other license, agreement, instrument, document, permit or franchise (Bor in any rights or property obtained by such Assignor under such contract, license, agreement, instrument, document, permit or franchise) a breach except to the extent provided by Sections 9-406, 9-407, 9-408 and 9-409 of the UCC, and (iii) any rights or property to the extent that any valid and enforceable law or regulation which prohibits statute or rule, regulation, guideline, order or directive of a governmental authority or agency applicable to such rights or property prohibits, restricts, or requires the consent of a third party for, or would result in the termination of such rights or property as a result of, the creation of a security interest thereunder (other than therein except to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section provided by Sections 9-406, 9 9-407, 9-408 or and 9-409 of the UCC (or solely to the extent the UCC is controlling), (y) subject to the immediately succeeding proviso, no Assignor shall be required to grant a security interest hereunder in (and the term “Collateral” shall not include) any successor provision or provisions) of licenses and permits issued by the FCC, any relevant jurisdiction PUC or any other then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the extent, and only to the extent, it is unlawful to grant a security interest in such licenses and permits (and upon such grant of a security being lawful, whether because of a change of law, the obtaining of any necessary consents or otherwise, the security interests granted hereunder automatically (and without any further action) shall extend to such licenses and/or permits); provided that the foregoing limitation shall not exclude the grant of a security interest therein pursuant to this Section 1.1(a) in all proceeds derived from or in connection with the sale, assignment or transfer of such licenses and permits, and (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as z) (i) except in the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective circumstances and to the extent severableprovided by Section 9.16 of the Credit Agreement, no Assignor shall attach immediately be required to grant a security interest hereunder in (and the term “Collateral” shall not include) the Voting Equity Interests of any portion Exempted Foreign Entity constituting more than 65% of the total combined voting power of all Voting Equity Interests of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; Exempted Foreign Entity and (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant subject to the proviso to compliance with Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b10.12(b) of the Credit Agreement andAgreement, thereafter, such Margin Stock no Assignor shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts be required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair hereunder in (and the validity or enforceability term “Collateral” shall not include) any Equity Interests in US LEC PAC. For the avoidance of doubt, notwithstanding the preceding sentence, each Assignor shall be required to grant a security interest hereunder in 100% of the Non-Voting Equity Interests of each Exempted Foreign Entity at any time and from time to time acquired by such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);Assignor.
(cb) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(c) Notwithstanding anything to the contrary contained in this Section 1.1, the term “Collateral”, as it only refers to the Collateral securing the Additional First Lien Obligations, shall not include any Equity Interests and other securities of a Subsidiary of the Borrower to the extent that the pledge of such Equity Interests and other securities would result in the Borrower or such Subsidiary being required to file separate financial statements of such Subsidiary with the SEC, but only to the extent necessary to not be subject to such requirement and only for so long as such requirement is in existence and only with respect to the relevant Additional First Lien Obligations affected thereby; provided that neither the Borrower nor any of its Subsidiaries shall take any action in the form of a reorganization, merger or other restructuring a principal purpose of which is to provide for the release of the Lien on any Equity Interest or other securities pursuant to this clause (c). In addition, in the event that Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) is amended, modified or interpreted by the SEC to require (or is replaced by another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other Governmental Authority) of separate financial statements of any Subsidiary of the Borrower due to the fact that such Subsidiary’s Equity Interests or other securities secure the Additional First Lien Obligations affected thereby, then the Equity Interests or other securities of such Subsidiary will automatically be deemed not to be part of the Collateral securing the relevant Additional First Lien Obligations affected thereby but only to the extent necessary to not be subject to such requirement and only for so long as required to not be subject to such requirement. In such event, this Agreement may be amended or modified, without the consent of any Secured Creditor, to the extent necessary to release the security interests in favor of the Collateral Agent on the Equity Interests or other securities that are so deemed to no longer constitute part of the Collateral for the relevant Additional First Lien Obligations only. In the event that Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Equity Interests or other securities to secure the Additional First Lien Obligations in excess of the amount then pledged without the filing with the SEC (or any other Governmental Authority) of separate financial statements of such Subsidiary, then the Equity Interests or other securities of such Subsidiary will automatically be deemed to be a part of the Collateral for the relevant Additional First Lien Obligations. For the avoidance of doubt and notwithstanding anything to the contrary contained in this Agreement, nothing in this clause (c) shall limit the pledge of such Equity Interests and other securities from securing the Credit Document Obligations and the Other Obligations at all times or from securing any Additional First Lien Obligations that are not in respect of securities subject to regulation by the SEC. For purposes of this clause (c), “securities” has the meaning ascribed to such term for purposes of Rule 3-16.
(d) This Agreement amends and restates the Original Security Agreement. The Liens hereunder are granted as Obligations of the Assignors under the Original Security Agreement and the grant of security only interest in the Collateral by the Assignors under the Original Security Agreement shall continue (uninterrupted) under this Agreement, and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect event be terminated, extinguished or modifyannulled, but shall hereafter be governed by this Agreement. All references to the Original Security Agreement in any obligation Credit Document (other than this Agreement) or liability of any Grantor with respect to any of the Collateral other document or any transaction instrument delivered in connection therewith.
(e) Notwithstanding anything herein therewith shall be deemed to the contrary, the Grantors make no representations or warranties hereunder, refer to this Agreement and the covenants hereunder shall not apply, in respect of provisions hereof. It is understood and agreed that the Excluded AssetsOriginal Security Agreement is being amended and restated by entry into this Agreement on the date hereof.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required Claims;
(vi) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including but not limited to be provided pursuant to Section 3.1 belowDomain Names and Trade Secret Rights;
(vii) All all Contracts, together with all Contract Rights arising thereunder;
(viii) all DocumentsCopyrights;
(ix) all Equipment;
(x) all FixturesDeposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(xi) all GoodsDocuments;
(xii) all InstrumentsGeneral Intangibles;
(xiii) all Intellectual PropertyGoods;
(xiv) all Promissory NotesInstruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General IntangiblesMarks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks;
(xix) all Payment Intangibles (including corporate and other tax refunds)Patents;
(xx) all Permits;
(xxi) all books Software and records (including all booksSoftware licensing rights, databasesall writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and recordslicenses, whether tangible and all recorded data of any kind or electronicnature, which contain any information relating to any regardless of the foregoing)medium of recording;
(xxii) with respect to each right to payment or performance included in each of the foregoing, any all Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationObligations; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding ; provided that, notwithstanding anything herein to the contrarycontrary contained in this Agreement, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) as used herein shall not include, include (ix) any propertyLimited Liability Company Interests (as defined in the Pledge Agreement), interest Partnership Interests (as defined in the Pledge Agreement), or other rights for so long Vitritek Interests (as defined in the grant of Pledge Agreement) unless, and in such security interest shall constitute or result in (A) a breach or termination pursuant case only to the terms ofextent that, such Limited Liability Company Interests, Partnership Interests and/or Vitritek Interests are included in the definition of “Collateral” as such term is defined in the Pledge Agreement or a default under(y) any of the Assignors’ rights in any of the following Patents: U.S. Patent Numbers 5,851,246; 5,656,044; 5,584,255 and 5,425,792 (collectively, any General Intangiblethe “Subject Patents”), lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that (and only for so long as) any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 9-406, 9 407, 9-408 or 9-409 of the UCC (or agreement among any successor provision or provisions) of any relevant jurisdiction or Assignor and any other then-applicable law (including any applicable bankruptcy laws) Person with rights to such Patents prohibits the granting of, or principles of equity) or (C) require requires the consent of a Governmental Authority to permit such other Person in connection with the grant of granting of, a security interest therein in such Patents (and any such consent has not been obtained); providedagreement, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded AssetsSubject Patent Agreement”);.
(cb) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security Agreement (Duratek Inc)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the First-Lien Collateral Agent, and does hereby pledge and grant to the First-Lien Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and MoneyCash Equivalents;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth on Annex E hereto Claims;
(vi) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including but not limited to all Software, and all Software licensing rights, all writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and licenses, and all recorded data of any kind or for which notice is required to be provided pursuant to Section 3.1 belownature, regardless of the medium of recording;
(vii) All all Domain Names;
(viii) all Trade Secret Rights;
(ix) Contracts, together with all Contract Rights arising thereunder;
(viiix) all Copyrights;
(xi) all Equipment;
(xii) all Deposit Accounts and all other demand, deposit, time, savings, cash management and passbook accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited in any of the foregoing;
(xiii) all Documents;
(ixxiv) all EquipmentGeneral Intangibles;
(x) all Fixtures;
(xixv) all Goods;
(xiixvi) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xvxvii) all Inventory;
(xvixviii) all Investment Property;
(xviixix) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviiixx) all General IntangiblesMarks;
(xixxxi) all Payment Intangibles (including corporate and other tax refunds)Patents;
(xxxxii) all Permits;
(xxixxiii) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationObligations; and
(xxiiixxiv) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of any item excluded pursuant to the foregoing next succeeding sentence (except to the extent such proceeds would independently be excluded pursuant to said sentence) (all of the above, the “"Collateral”").
(b) . Notwithstanding anything herein to the contrarycontrary contained above, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach toCollateral include, and the term “Collateral” no Assignor shall be deemed to have granted a security interest (unless and the component terms thereofuntil as further provided below) shall not include, in (ia) any propertylease, interest license, contract, property rights or other agreement to which any Assignor is a party or any of its rights or interests thereunder or property subject thereto if and for so long as the grant of such security interest shall constitute or result in (Ai) the abandonment, invalidation or unenforceability of same or (ii) in a breach or termination pursuant to the terms of, or a default under, any General Intangible, such lease, license, contract, property rights or agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in the case of preceding clause (Ai) or (Bii) above is , as applicable) would be rendered ineffective pursuant to Section Sections 9-406, 9 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy lawsthe Bankruptcy Code) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); , provided, however, that such (x) the security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severableinterests hereunder, shall attach immediately to any portion of such lease, license, contact, property rights or other rights agreement that does not result in any of the consequences specified in clause (A), (Bi) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside to any property or assets described above in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in this clause (iva) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to on the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in first date upon which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets circumstances described in preceding clauses (i) through and/or (viii) hereof(as relevant) no longer exist with respect thereto, collectively(b) any property or asset of Starpower Communications, LLC for so long as the “Excluded Assets”);organizational documents of such entity prohibits the granting of a security interest in such property or asset; provided that a security interest shall attach immediately upon (and the exclusion to this clause (b) shall no longer apply at any time after) the consummation of the Starpower Acquisition, or (c) the equity interests of (x) Megacable, S.A. de C.V., MCM Holdings, S.A. de C.V. and Megacable Telecommunicaciones, S.A. de C.V. for so long as the organizational documents of such entities prohibits the granting of a security interest in such equity interests; provided that such security interest shall attach immediately when such prohibition is no longer in effect or (y) more than 65% of the Voting Equity Interests of any Foreign Corporation; provided that each Assignor shall be required to pledge hereunder 100% of any Non-Voting Equity Interests at any time and from time to time acquired by such Assignor of any Foreign Corporation.
(cb) The security interest of the First-Lien Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(ec) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, relative rights and remedies of First-Lien Collateral Agent shall be subject to and governed by the terms of the Intercreditor Agreement at any time the Intercreditor Agreement is in effect. In the event of any inconsistency between the terms hereof and the covenants hereunder Intercreditor Agreement, the Intercreditor Agreement shall not apply, control at any time the Intercreditor Agreement is in respect of the Excluded Assetseffect.
Appears in 1 contract
Sources: Security Agreement (RCN Corp /De/)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the Obligations, each Each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant grants to the Collateral Agent, for the benefit of the Secured Parties, a continuing security interest in all of the such Grantor’s right, title and interest of in and to the following property, now owned or at any time hereafter acquired by such Grantor in, to and under all of the following personal property (and all rights therein) of such Grantor, or in which or to which such Grantor now has or at any rightstime in the future may acquire any right, in each title or interest (collectively, the “Collateral”), as collateral security for the payment or performance, as the case may be (whether now existing at the stated maturity, by acceleration or hereafter otherwise), of the Obligations:
(a) all Accounts;
(b) all cash, Cash Equivalents and Deposit Accounts;
(c) all Chattel Paper;
(d) all Commercial Tort Claims described on Schedule 6 (as such schedule may be supplemented from time to time acquired or arising and regardless of where located:
(i) each and every Account (and all rights pursuant to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General IntangibleSection 8.14(b));
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viiie) all Documents;
(ixf) all Equipment;
(xg) all Fixtures;
(xih) all GoodsGeneral Intangibles, including contract rights;
(xiii) all Instruments, including the Pledged Notes;
(xiiij) all Intellectual Property;
(xiv) all Promissory Notes;
(xvk) all Inventory;
(xvil) all Investment Property, including the Pledged Stock and Securities Accounts;
(xviim) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing)Rights;
(xviiin) all General Intangiblesother Goods;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxio) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating pertaining to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationCollateral; and
(xxiiip) to the extent not otherwise included, all substitutions, replacements accessions, Proceeds and products of any of the Collateral and products of any and all of the foregoing, including foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing and all cashforegoing; provided, Moneyhowever, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds that notwithstanding any of the foregoing (all other provisions set forth in this Section 3.1, this Agreement shall not constitute a grant of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the a security interests and Liens granted under Section 1.1(a) hereof attach tointerest in, and the term “Collateral” (and the component terms thereof) Collateral shall not include, (i) any property, leasehold interest or other rights for so long as the grant of such security interest shall constitute or result in real property (Aand any Fixtures relating thereto) a breach or termination pursuant and any Fixtures relating to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than owned real property to the extent that any such term specified in clause (A) or (B) above the Collateral Agent is rendered ineffective pursuant not entitled to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and with respect to such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as owned real property under the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any terms of the consequences specified in clause (A), (B) or (C) aboveIndenture; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles motor vehicles and other assets subject to certificates of title title; (iii) pledges and security interests prohibited by any Requirement of Law of a Governmental Authority; (iv) Capital Stock in any person other than wholly owned Restricted Subsidiaries to the extent such rights can be perfected (A) not permitted by the filing terms of a financing statement under the UCC); and such person’s organizational or joint venture documents or (viB) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which that the grant of a security interest therein would impair require the validity or enforceability consent of any Person who owns such application under applicable federal law Capital Stock (other than Holdings or any of its Affiliates) which consent has not been obtained; (v) assets to the extent a security interest in such rights can be perfected assets would result in material adverse tax consequences (including as a result of the operation of Section 956 of the IRS Code or any similar law or regulation in any applicable jurisdiction) as reasonably determined by the filing Issuer and communicated in writing delivered to the Trustee and Collateral Agent; provided that any failure to deliver such writing shall not affect the effectiveness or validity of such exclusion; (vi) any lease, license or other agreement, any asset embodying rights, priorities or privileges granted under such leases, licenses or agreements, or any property subject to a purchase money security interest or similar arrangement to the extent that a grant of a financing statement security interest therein would violate, breach or invalidate such lease, license or agreement or purchase money arrangement or create a right of acceleration, modification, termination or cancellation in favor of any other party thereto (other than any Grantor) after giving effect to the applicable anti-assignment provisions of the New York UCC other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the New York UCC notwithstanding such prohibition; (vii) those assets as to which the Collateral Agent and the Issuer reasonably agree that the cost of obtaining such a security interest or perfection thereof is excessive in relation to the benefit to the Secured Parties of the security to be afforded thereby; (viii) in excess of 65% of the voting Capital Stock of (A) any Foreign Subsidiaries or (B) any Foreign Subsidiary Holding Company; (ix) any governmental licenses or state or local franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions of the New York UCC; and (x) “intent to use” applications for trademark or service ▇▇▇▇ registrations filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ Act, 15 U.S.C. § 1051, unless and until an Amendment to Allege Use or a Statement of Use under Section 1(c) or 1(d) of said Act has been filed and accepted (the assets foregoing described in preceding clauses (i) through (vix) hereofare, collectively, the “Excluded AssetsCollateral”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of the Obligations, each Grantor Assignor does hereby sell, assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in of first priority in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:(collectively, the "Collateral"):
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));Receivable,
(ii) all cash and Money;Contracts, together with all Contract Rights arising thereunder,
(iii) all Inventory,
(iv) all Equipment,
(v) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks,
(vi) all Patents and Copyrights,
(vii) all computer programs of such Assignor and all intellectual property rights therein and all other Proprietary Information of such Assignor, including, but not limited to, Trade Secrets,
(viii) all Permits,
(ix) the Cash Collateral Account and all monies, securities, Instruments securities and other investments instruments deposited or required to be deposited in the such Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;,
(x) all Fixtures;other Goods, General Intangibles, Chattel Paper, Documents and Instruments (other than the Securities and Equity Interests, as defined in, and which are pledged, or not required to be pledged, pursuant to the Pledge Agreement), and
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term continuation of this Agreement.
(d) The Liens hereunder are , provided that no security interest is granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor under this Agreement with respect to any Equipment subject on the date hereof to any secured installment purchase agreement that by its terms prohibits the creation of additional liens on such Equipment unless consent has been obtained and provided further that the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein Company shall use its commercially reasonable efforts to obtain such consent, it being understood that the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder Company shall not applybe required to pay more than the nominal fee for such consent. Upon the payment of all amounts owing under such installment purchase agreement or the removal of any prohibition on the creation of a lien on the Equipment subject thereto, in respect of the Excluded Assetssuch Equipment shall constitute collateral hereunder.
Appears in 1 contract
Sources: Security Agreement (Safety Components International Inc)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the Obligations and all Post-Petition Interest and Expense Claims (collectively, the "Secured Obligations"), each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant assigns to the Collateral Agent, Secured Party for the benefit of the Beneficiaries, and grants Secured PartiesParty for the benefit of the Beneficiaries security interests in, a continuing security interest in all of the Grantor's right, title and interest of such Grantor in, in and to and under all of the following personal property (and all rights therein) types or items of such Grantor, or in which or to which such Grantor has any rightsproperty, in each case whether now or hereafter existing or owned by Grantor or in which Grantor now owns or hereafter from time to time acquired or arising acquires an interest and regardless of where located:wherever the same may be located (collectively, the "Collateral"):
(i) each all Inventory, including specifically all raw materials, work-in-process, finished goods, supplies, materials, spare parts, Goods held for sale or on lease or for lease or furnished or to be furnished under contracts of service, merchandise inventory, rental inventory, and every Account (returned or repossessed Goods and all rights to receive paymentsenforce return or repossession by reclamation, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document stoppage in transit or General Intangible));otherwise,
(ii) all cash Equipment, including specifically all manufacturing, printing, distribution, delivery, retailing, vending, data processing, communications, office and Money;other equipment in all of its forms, all vehicles, all tools, dies, and molds, all Fixtures, all other Goods used or bought for use primarily in a business and all other Goods except Inventory,
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13Accounts,
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;Chattel Paper,
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);Documents,
(vi) all Commercial Tort Instruments and all other Claims set forth on Annex E hereto that are in any respect evidenced or for which notice is required to be provided pursuant to Section 3.1 below;represented by any writing, including any promissory notes and all other notes and all other writings evidencing or representing a Claim against any Subsidiary of the Grantor or any other Person,
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and recordsSecurities, whether tangible constituting Certificated Securities or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Uncertificated Securities, all Notes, all Financial Assets, incomeall Security Entitlements, royaltiesall Securities Accounts, paymentsall Commodity Contracts, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach toCommodity Accounts, and all other Investment Property, including specifically the term “Collateral” (Security Certificates described in Schedule 3.1(b) and the component terms thereof) shall not include, (i) any property, interest or all other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (Equity Interests and such consent has not been obtained)all Existing Investments; provided, however, that such security interest only 65% of the issued and outstanding capital stock of foreign subsidiaries of the Grantor shall attach immediately at such time be pledged,
(viii) all money, cash and cash equivalents, including specifically all deposit accounts and all certificates of deposit,
(ix) all General Intangibles, including specifically (a) the property described on Schedule 3.1(c), (b) all registered and unregistered trademarks and service marks and all trademark and service ▇▇▇▇ license agreements to which Grantor is a party (whether as licensor or licensee) and all Claims (including infringement claims) relating thereto, (c) all patents and patent applications and all patent license agreements to which Grantor is a party (whether as licensor or licensee) and all Claims (including infringement claims) relating thereto, (d) all registered and unregistered copyrights and all copyright license agreements to which Grantor is a party (whether as licensor or licensee) and Claims (including infringement claims) relating thereto, (e) all other intellectual property in which Grantor has an interest, including proprietary research and development, know-how, trade secrets, trade names, trade styles, license agreements and user rights and Claims (including infringement claims) relating thereto, (f) all customer lists and agreements, (g) all supplier lists and agreements, (h) all employee and consultant lists, rights, and agreements, (i) all computing, data and information processing and communications programs, discs, designs, and information and the condition causing such abandonmentdata and other entries thereon, invalidation(j) all books, unenforceability breach records, catalogs, back issues, library rights and all manifestations and embodiments thereof, (k) all rights and Claims arising under or termination shall no longer be effective in respect of the Credit Agreement or any Loan Document, including rights and to Claims against Secured Party or any other Beneficiary, (l) all Net Proceeds, (m) all tax refunds, (n) all policies of insurance and condemnation awards of every type and description and the extent severableproceeds thereof, shall attach immediately to (o) all loans receivable, letters of credit, bonds and undertakings, deferred purchase price or deferred purchase consideration, consulting or non-competition payments and other Indebtedness, liabilities and obligations receivable not constituting an Account and not evidenced or represented by any portion Instrument, Chattel Paper or Security, (p) all rights of such recoupment, recourse, reimbursement, subrogation, indemnity or contribution (including those arising under any Guaranty or any payment thereon, and those arising on account of any other agreement, transaction or event), (q) all other causes of action and Claims of every type and description, whether fixed or contingent, liquidated or not liquidated, accrued or not accrued, and all judgments, orders and recoveries thereon, (r) all other agreements and contract rights of every type and description and Claims thereon or relating in any manner thereto, (s) all other rights, privileges, benefits, entitlements, franchises, licenses and expectancies of every type and description, (t) all other intangible property or other rights that does not result in of every type and description, and (u) all goodwill associated with any of the consequences specified foregoing,
(x) all property that is at any time delivered to, or that is at any time in clause (A)the Control of, (B) or (C) above; (ii) the Pledge Agreement CollateralSecured Party, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stocktogether, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith (a) all accessions thereto and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided howeverproducts and replacements thereof, that each applicable Grantor shall provide to the Secured Parties notice (b) all guaranties, Liens and other forms of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accountscollateral security therefor, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor may acquiredividends, distributions, and payments received thereon or with respect to which any Grantor may obtain rightsin exchange or substitution therefor or upon Transfer thereof, at any time during the term of this Agreement.
and (d) The Liens hereunder are granted all other proceeds thereof; except and excluding, however, each item of property that is an Excluded Asset, for as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or long as it remains an Excluded Asset. All references in any way affect or modify, any obligation or liability of any Grantor with respect this Agreement to any type of the Collateral or collateral described above in this Section 2.1 shall be deemed to exclude any transaction in connection therewithExcluded Assets that would otherwise be included therein.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Credit Agreement (Usi Holdings Corp)
Grant of Security Interests. (a) As security for To secure the prompt and complete payment and performance when due of all Obligations (as defined in the ObligationsTerm Loan Agreement), including the Term Loan, all indemnification obligations under the Loan Documents and all liabilities and obligations of each Guarantor under its Guaranty, each Grantor does Loan Party hereby assign grants and transfer unto the Collateral Agent, and does hereby pledge and grant re-grants to the Collateral Agent, for the benefit of the Secured Parties, a continuing security interest in in, Lien on, assignment of and right of set-off against, all of the such Loan Party’s right, title and or interest of such Grantor in, in or to and under all of the following personal types and items of property (and all rights therein) of such GrantorLoan Party, or in which or to which such Grantor has any rights, in each case whether now owned or existing or hereafter from time to time created, acquired or arising and regardless of where wherever located:
(i) each all Receivables, and every Account (all contracts out of which any Receivable has arisen and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))under each such contract;
(ii) all cash Goods, including, without limitation, all Equipment and MoneyInventory;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13Chattel Paper;
(iv) all (x) Deposit AccountsDocuments, collection accountsincluding, disbursement accounts and lock boxes and without limitation, all cashcontracts, Money, checks, other negotiable instruments, funds documents of title and other evidences Documents that evidence ownership of payments held therein or credited theretoright to receive or possess, (y) Securities Accounts and Security Entitlements and Securities credited theretoor that otherwise relate to, and all cashany Inventory, Moneyincluding, checkswithout limitation, marketable securities, Financial Assets and relating to the acquisition or sale or other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited theretodisposition of Inventory;
(v) all Chattel Paper rights of an unpaid vendor with respect to Inventory;
(vi) all tax refunds and claims for tax refunds;
(vii) all Instruments;
(viii) all Supporting Obligations;
(ix) all General Intangibles (including, without limitation, all Tangible Chattel Paper Payment Intangibles and all Electronic Chattel PaperSoftware and warranties of title);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all FixturesLetter-of-Credit Rights;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xviixii) all Letter-of-Credit Rights (whether money, cash, Cash Equivalents, securities and other property of any kind of any Loan Party held directly or not the respective letter of credit is evidenced indirectly by a writing)Agent or any other Secured Party;
(xviiixiii) all General IntangiblesDeposit Accounts and Deposit Account Collateral, credits, and balances with the Agent or any other Secured Party or any of their Affiliates or any other financial institution with which any Loan Party maintains deposits, including any Payment Accounts;
(xixxiv) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databasesrecords and other property related to or referring to any of the foregoing, customer listsincluding books, and records, whether tangible account ledgers, data processing records, computer software and other property and General Intangibles at any time evidencing or electronic, which contain any information relating to any of the foregoing);
(xxiixv) with respect to each right to payment or performance included the Commercial Tort Claims in each which a Loan Party is a plaintiff and which are described in Schedule IV attached hereto; and
(xvi) all accessions to, substitutions for and replacements, products and proceeds of any of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutionsincluding, replacements accessionsbut not limited to, Proceeds and products proceeds of any insurance policies, claims against third parties, and condemnation or requisition payments with respect to all or any of the foregoing. All of the foregoing, including collateral security and guarantees with respect together with, all equity interests in Subsidiaries to any of the foregoing extent pledged to Agent and all cashother property of any Loan Party in which Agent or any other Secured Party may at any time be granted a Lien as security for the Obligations, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, are herein collectively referred to as the “Collateral”).
(b) Notwithstanding anything herein to ; provided, however, that the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) Collateral shall not include, (i) include any property, interest rights or other rights for so long as interests of a Loan Party in any contract or license if under the grant terms of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms ofcontract, or a default under, any General Intangible, lease, applicable law with respect to such contract or license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation valid grant of a security interest thereunder 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 or license has not been or is not otherwise obtained or under applicable law such prohibition cannot be waived; provided, further, that the foregoing exclusion shall in no way be interpreted (other than i) to the extent that apply if any such term specified in clause prohibition is ineffective or unenforceable under the UCC (A) or (B) above is rendered ineffective pursuant to Section including Sections 9-406, 9 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions409) of any relevant jurisdiction or any other then-applicable law or (ii) so as to limit, impair or otherwise affect Agent’s unconditional continuing security interest in and Lien upon any rights or interests of such Loan Party in or to monies due or to become due under any such contract (including any applicable bankruptcy lawsAccounts).
(b) or principles For the avoidance of equity) or (C) require doubt, the consent security interests granted by Loan Parties in favor of a Governmental Authority Agent, for the benefit of the Secured Parties, pursuant to permit the grant of a this Agreement shall be in addition to, and not in lieu of, any other security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and Lien granted by any Loan Party in favor of any Secured Party pursuant to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Loan Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);.
(c) The security interest All of the Collateral Agent under this Agreement extends to Obligations shall be secured by 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewithCollateral.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security Agreement (Salton Inc)
Grant of Security Interests. (a) As collateral security for the prompt and complete payment and performance when due by each Assignor of the all of such Assignor’s Obligations, each Grantor such Assignor does hereby pledge, assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured Parties, subject to Section 1.3, a continuing security interest in in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
acquired: (i) all cash, deposit accounts, securities accounts, deposits, securities and insurance policies now or at any time hereafter in the possession or under control of such Assignor or its respective bailees and any interest therein, (ii) each and every Account (and all rights to receive paymentsReceivable, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
, and all equity and debt securities and other interests in any and all Unrestricted Subsidiaries, (iv) all Inventory, (v) any cash collateral account established with respect to such Assignor and all monies, securities and instruments deposited or required to be deposited in such cash collateral account, (vi) all Equipment, (vii) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks, (viii) all Documents;
Patents and Copyrights, and all reissues, renewals or extensions thereof, (ix) all Equipment;
computer programs and all intellectual property rights therein and all other proprietary information, including, but not limited to, Trade Secrets, (x) all Fixtures;
vehicles, aircraft, vessels, barges, railcars, rolling stock and fixtures, together with accessions thereto and replacement parts therefor, (xi) (A) all Goods;
Intercompany Notes described in Schedule B (as it may, from time to time, be supplemented in accordance with the terms hereof), all other Intercompany Notes and all other promissory notes which are pledged to the Collateral Agent or otherwise become a part of the Collateral; (B) all shares of capital stock described in Schedule C (as it may, from time to time, be supplemented in accordance with the terms hereof) and all other shares of capital stock or other equity interests; and (C) all Stock Rights, (xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databasesrecords, customer lists, ledger cards, credit files, print-outs, and records, whether tangible or electronic, which contain any information relating other materials and records pertaining to any of the foregoing);
, whether now owned or hereafter acquired, (xxiixiii) all other Goods, General Intangibles, Chattel Paper, Documents and Instruments, (xiv) all other personal property of such Assignor, whether now owned or hereafter acquired, (xv) all documents of title evidencing or issued with respect to each right to payment or performance included in each any of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiiixvi) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoingforegoing (including, including collateral security without limitation, all insurance and guarantees with claims for insurance effected or held for the benefit of such Assignor in respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing thereof) (all of the above, as limited below, collectively, the “New Collateral” and, together with the Collateral (as such term is defined in the Existing Security Agreement), the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such the security interests granted hereunder shall not cover any Assignor’s right, title and interest in any (1) Contract, lease, license or other agreement which by its terms expressly prohibits in a legally valid manner the granting of a security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A)therein, (B2) any asset described in clauses (t) or (Cu) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b7.10(a) of the Credit Agreement and(except, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, case of any other account of the type asset described in clause (ivu) not otherwise constituting a Deposit Account; (vof Section 7.10(a) any Vehicles and other assets subject to certificates of title (other than the Credit Agreement, to the extent such rights can be perfected that the Lender (as defined in that certain Loan Agreement by and among Huntsman Headquarters Corporation, Huntsman Petrochemical Corporation, Huntsman Chemical Corporation, Huntsman Packaging Corporation and U.S. Bank of Utah dated as of December 17, 1996 (the filing “Headquarters Loan Agreement”)) has consented to the grant by Huntsman Headquarters Corporation of a financing statement under security interest in any Collateral (as defined in the UCCHeadquarters Loan Agreement) hereunder); and (vi3) any United States “intent-to-use” Trademark application prior capital stock not required pursuant to Section 7.10(c) or 7.10(e) of the filing of a “Statement of Use” or “Amendment Credit Agreement to Allege Use” with respect thereto, to be pledged hereunder.
(b) The Pledged Intercompany Notes listed on Schedule B and the extent, if any, that, and solely during certificates representing the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law Pledged Stock listed on Schedule C (other than the shares of capital stock of Foreign Subsidiaries which are not certificated) shall have been delivered to the extent Collateral Agent together with appropriate undated note powers and stock powers duly executed in blank on or before the date hereof. Neither the Collateral Agent nor any Secured Party shall be obligated to preserve or protect any rights with respect to the Pledged Intercompany Notes or the Pledged Stock or to receive or give any notice with respect thereto whether or not the Collateral Agent or any Secured Party is deemed to have knowledge of such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);matters.
(c) The assignments and security interest interests under this Agreement granted to the Collateral Agent shall not relieve any Assignor from the performance of any term, covenant, condition or agreement on such Assignor’s part to be performed or observed under or in respect of any of the Collateral pledged by it hereunder or from any liability to any Person under or in respect of any of such Collateral or impose any obligation on the Collateral Agent to perform or observe any such term, covenant, condition or agreement on such Assignor’s part to be so performed or observed or impose any liability on the Collateral Agent for any act or omission on the part of such Assignor relative thereto or for any breach of any representation or warranty on the part of such Assignor contained in this Agreement or any other Loan Document, or in respect of the Collateral pledged by it hereunder or made in connection herewith or therewith. The obligations of each Assignor contained in this paragraph shall survive the termination of this Agreement and the discharge of such Assignor’s other obligations hereunder.
(d) The security interests of the Collateral Agent under this Agreement extends extend to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term continuation of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security Agreement (Huntsman Petrochemical Finance Co)
Grant of Security Interests. (a) As security for Upper Tier Borrower hereby grants to Lenders, to secure the prompt and complete payment and performance when due in full of all of the Obligations, each Grantor does hereby assign Obligations under this Agreement and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesFacility Notes, a continuing security interest in and so pledges and assigns to Lenders the following: (i) all of the rightSmall Business Loans, title and interest of such Grantor inthe Small Business Notes, the Small Business Loan Agreements, the Small Business Loan Documentation, the Small Business Guaranties, as applicable, with respect to and each Small Business Loan originated under all of the following personal property (and all rights therein) of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
Facility; (ii) all cash and Money;
(iii) the Cash Collateral Account and all moniesaccessions, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited theretoadditions, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter substitutions of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
; and (xxiiiii) with respect to each right to payment or performance included in each all proceeds of any of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to whether any of the foregoing is owned now or acquired later; all accessions, additions, and substitutions of any of the foregoing; and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds proceeds of any of the foregoing (all of the above, same being hereinafter called the “Facility Collateral”), and all insurance claims and other proceeds or products thereof, whether now owned or existing or hereafter acquired or arising, wherever located and whether in Upper Tier Borrower’s possession and control or in the possession and control of a third party.
(b) Notwithstanding anything herein Upper Tier Borrower hereby irrevocably authorizes Lenders, or the Administrative Agent on behalf of the Lenders, at any time and from time to time to file in any filing office in any Uniform Commercial Code jurisdiction any amendments to any previously filed financing statements and file such additional financing statements and amendments thereto that (a) indicate the contraryFacility Collateral, in no event shall and (b) provide any other information required by Article 9a of the security interests Uniform Commercial Code, for the sufficiency or filing office acceptance of any financing statement or amendment, including whether Upper Tier Borrower is an organization, the type of organization and Liens granted under Section 1.1(aany organizational identification number issued to Upper Tier Borrower. Upper Tier Borrower agrees to furnish any such information to Lenders promptly upon Lenders’ request.
(c) hereof attach toTo further the attachment, perfection and first priority of, and the term “ability of Lenders to enforce, Lenders’ security interest in the Facility Collateral” (, and without limitation on Upper Tier Borrower’s other obligations in this Agreement, Upper Tier Borrower agrees, in each case at Upper Tier Borrower’s expense, to take the component terms thereof) shall not include, following actions with respect to the following Facility Collateral:
(i) If any propertyFacility Collateral is at any time in the possession of a bailee, interest Upper Tier Borrower shall promptly notify Lenders, or other rights the Administrative Agent on behalf of the Lenders, thereof and, at Lenders’ request and option, shall promptly obtain an acknowledgement from the bailee, in form and substance satisfactory to Lenders, that the bailee holds such Facility Collateral for so long the benefit of Lenders, and that such bailee agrees to comply, without further consent of Upper Tier Borrower, with instructions from Lenders as the grant to such Facility Collateral. Lenders agree with Upper Tier Borrower that Lenders shall not give any such instructions unless an Event of such security interest shall constitute Default has occurred and is continuing or result in (A) a breach or termination pursuant would occur after taking into account any action by Upper Tier Borrower with respect to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; bailee.
(ii) Upper Tier Borrower further agrees, at the Pledge Agreement request and option of Lenders, to take any and all other actions Lenders may determine to be necessary or useful for the attachment, perfection and first priority of, and the ability of Lenders to enforce, Lenders’ security interest in any and all of the Facility Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreementincluding, as applicable; without limitation, (iiia) any treasury stock of a Grantor or other Margin Stockexecuting, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement delivering and, thereafterwhere appropriate, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith filing financing statements and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) amendments relating thereto under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect theretoUniform Commercial Code, to the extent, if any, thatthat Upper Tier Borrower’s signature thereon is required therefor, and solely during the period(b) causing Lenders’ name to be noted as Lenders on any certificate of title for a titled good if such notation is a condition to attachment, if anyperfection or priority of, in which the grant or ability of a Lenders to enforce, Lenders’ security interest therein would impair the validity or enforceability of in such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereofFacility Collateral, collectively, the “Excluded Assets”);
(c) The complying with any provision of any statute, regulation or treaty of the United States as to any Facility Collateral if compliance with such provision is a condition to attachment, perfection or priority of, or ability of Lenders to enforce, Lenders’ security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor may acquirein such Facility Collateral, or with respect to which any Grantor may obtain rights, at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only obtaining governmental and shall not subject the Administrative Agent or any other Secured Party tothird party waivers, or transfer or consents and approvals in any way affect or modifyform and substance satisfactory to Lenders, including, without limitation, any obligation or liability consent of any Grantor with respect to any of the Collateral licensor, lessor or any transaction in connection therewith.
other Person obligated on Facility Collateral, (e) Notwithstanding anything herein obtaining waivers from mortgagees and landlords in form and substance satisfactory to the contrary, the Grantors make no representations or warranties hereunder, Lenders and the covenants hereunder shall not apply, in respect (f) taking all actions under any earlier versions of the Excluded AssetsUniform Commercial Code or under any other law, as reasonably determined by Lenders to be applicable in any relevant Uniform Commercial Code or other jurisdiction, including any foreign jurisdiction.
Appears in 1 contract
Sources: Credit Agreement
Grant of Security Interests. (a) As Subject to 1.1(c) and Section 1.1(d), as security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the all of its Obligations, each Grantor does in order to induce the Secured Creditors to enter into the Note Purchase Agreement the Assignors do hereby assign and transfer unto the Collateral Agent, and does do hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor each Assignor in, to and under all of the following personal property (and all rights therein) of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:acquired):
(i) each and every Account (and all rights other than Accounts pledged by each Assignor to receive paymentsany Person advancing funds under a bona fide receivables-based, indebtedness and other obligations purchase order-based, or inventory-based line offered under its factoring arrangement or similar financing scheme (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangibleeach a "Collateralized Line of Credit"));
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes computer programs of the Assignors and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held intellectual property rights therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cashother proprietary information of the Assignors, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited theretoincluding but not limited to Trade Secret Rights;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder, including, without limitation, joint venture agreements, partnership agreements, and limited liability company agreements (other than Contracts or Contract Rights pledged to any Person advancing funds under a Collateralized Line of Credit);
(vi) all Copyrights;
(vii) all Equipment, except for such Equipment as listed in Schedule I;
(viii) all DocumentsDocuments (other than Documents pledged to any Person advancing funds under a Collateralized Line of Credit);
(ix) all EquipmentEquipment in the name of any subsidiary of Assignors not otherwise already pledged;
(x) all FixturesGeneral Intangibles;
(xi) all Goods;
(xii) all InstrumentsInstruments not otherwise pledged pursuant to the Collateralized Line of Credit (other than Instruments pledged to any Person advancing funds under a Collateralized Line of Credit);
(xiii) all Intellectual PropertyInventory created after the date hereof and pledged to any Person advancing funds under a Collateralized Line of Credit;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xv) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of the Assignors symbolized by the Marks;
(xvi) all Patents except for sublicenses or licenses;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing)Permits;
(xviii) all General IntangiblesSoftware and all Software licensing rights, all writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and licenses, and all recorded data of any kind or nature, regardless of the medium of recording;
(xix) all Payment Intangibles (including corporate and other tax refunds)Supporting Obligations;
(xx) all Permits;manuals, training material, diagrams, know how and other necessary or useful materials to utilize Assignors' trade secrets and other business intangibles; and
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “"Collateral”"), except as noted below.
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor the Assignors may acquire, or with respect to which any Grantor the Assignors may obtain rights, at any time during the term of this AgreementAgreement except as described below.
(c) Notwithstanding anything to the contrary set forth herein, the Collateral shall not include any interest in the assets set forth on Schedule 1.1(c).
(d) The Liens hereunder are granted as Assignors will be allowed to enter into a Collateralized Line of Credit and to grant first-priority security only interests in their accounts receivable purchase orders and inventory created after the date hereof to secure such Collateralized Line of Credit, provided that (i) at least fifty percent (50%) (in dollar terms of the principal amount) of the holders of Notes approve such Collateralized Line of Credit in writing, and (ii) the advance rate of such Collateralized Line of Credit shall not subject be at least sixty percent (60%) of the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any value of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein so pledged. Any assets so pledged shall not constitute Collateral if and to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assetsextent so pledged.
Appears in 1 contract
Sources: Security Agreement (Emagin Corp)
Grant of Security Interests. (a) As security for the prompt Each Grantor hereby unconditionally grants, assigns and complete payment and performance when due of the Obligations, each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant pledges to the Collateral Agent, for the benefit of itself and the Secured Partiesother Second Priority Obligees, a continuing security interest (the “Security Interest”) in all personal property of the such Grantor whether now owned or hereafter acquired or arising and wherever located, including but not limited to such Grantor’s right, title and interest of such Grantor in, in and to and under all of the following personal property (and all rights therein) of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:the “Collateral”):
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Accounts;
(ii) all cash and MoneyBooks;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited Chattel Paper (whether tangible or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13electronic);
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited theretoCommercial Tort Claims;
(v) Money, Cash Equivalents, or other assets of such Grantor that now or hereafter come into the possession, custody or control of the Collateral Agent (or its agent or designee);
(vi) Documents, including all Chattel Paper negotiable and nonnegotiable Documents covering any Inventory, Equipment or other Collateral;
(vii) General Intangibles (including, without limitation, all Tangible Chattel Paper Payment Intangibles, Intellectual Property and all Electronic Chattel PaperIntellectual Property Licenses);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) Goods, including, without limitation, all DocumentsEquipment, Fixtures and Inventory;
(ix) all Rights under insurance contracts covering any Inventory, Equipment, Documents or other Collateral;
(x) Instruments (including, without limitation, all FixturesPromissory Notes);
(xi) all GoodsInvestment Property and any interests in Capital Stock, Equity Interests and Indebtedness;
(xii) all InstrumentsLetter-of-Credit Rights;
(xiii) all Intellectual PropertyPledged Collateral;
(xiv) all Promissory NotesSecurities Accounts;
(xv) all InventoryCommodities Accounts;
(xvi) all Investment PropertySupporting Obligations;
(xvii) all Letter-of-Credit Rights All other tangible and intangible personal property of each Grantor (whether or not subject to the respective letter of credit is evidenced by a writingUCC);
(xviii) , including, without limitation, all General Intangibles;
(xix) all Payment Intangibles (including corporate bank and other tax refundsaccounts and all cash and all investments therein, all proceeds, products, offspring, accessions, rents, profits, income, benefits, substitutions and replacements of and to any of the property of a Grantor described in the preceding clauses of this Section 2 (including, without limitation, any proceeds of insurance thereon and all causes of action, claims and warranties now or hereafter held by such Grantor in respect of any of the items listed above);
(xx) all Permits;
(xxi) all books , and records (including all books, databasescorrespondence, customer listsfiles and other Records, including, without limitation, all tapes, disks, cards, Software, data, computer programs, and recordsinstructions for execution by a computer processor (including the code in such Software, whether tangible computer programs, or electronic, which instructions) in the possession or under the control of such Grantor or any other Person from time to time acting for such Grantor that at any time evidence or contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment property described in the preceding clauses of this Section 2 or performance included are otherwise necessary or helpful in each of the foregoing, any Supporting Obligation that supports such payment collection or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligationrealization thereof; and
(xxiiixviii) all substitutionsProceeds, replacements accessionsincluding all Cash Proceeds and Noncash Proceeds, Proceeds and products of any and all of the foregoingforegoing Collateral; in each case, including collateral security and guarantees with respect to any of howsoever the foregoing and all cashGrantor’s interest therein may arise or appear (whether by ownership, MoneySecurity Interest, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”claim or otherwise).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) and no Grantor is pledging or otherwise granting a Security Interest hereunder in, any property, interest or other rights for so long as the grant of such security Grantor’s right, title or interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” following assets (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”)):
(i) Light trucks and other non-commercial passenger motor vehicles; owned or leased by such Grantor;
(cii) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor may acquire, Any lease or with respect to which any Grantor may obtain rights, at any time during the term of this Agreement.
sublease (d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, whether in respect of personal property or Real Property) in which the Excluded Assets.Grantor’s interest therein is solely as a lessee or sublessee;
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign (except in the case of Collateral which are ULC Shares) and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document of Title or General Intangible));
(ii) all cash and Moneymoney;
(iii) the Cash Collateral Account and all moniesmoneys, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Moneymoney, checkscheques, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts, Collateral Accounts and Security Entitlements security entitlements and Securities credited thereto, and all cash, Moneymoney, checkscheques, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts commodity accounts and all cash, Moneymoney, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 belowpromissory notes;
(vii) All Contracts, together with all Contract Rights arising thereunderInstruments and Securities;
(viii) all DocumentsInventory;
(ix) all Equipment;
(x) all FixturesGoods;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xviixii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xxxiii) to the extent relating to, evidencing or governing any of the items referred to in preceding clauses (i) through (xii), all Permits, Documents of Title, Intangibles (including data processing software but excluding Copyrights, Patents, Trade Secrets and Marks), Instruments, letter-of-credit rights, related letters of credit, guarantees and collateral liens and other claims and causes of action, documents of title, customs receipts, insurance, shipping and other documents and other materials related to the foregoing (including to the purchase or import of any Inventory);
(xxixiv) to the extent relating to, evidencing or governing any of the items referred to in the preceding clauses (i) through (xiii), all Supporting Obligations;
(xv) all books and records relating to the items referred to in the preceding clauses (i) through (x) (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoingitems referred to in the preceding clauses (i) through (xiii);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiiixvi) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Moneymoney, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing foregoing; and
(xvii) (all of the aboveabove (i) to and including (xvi), collectively, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective against the Collateral Agent pursuant to Section 9-406, 9 407, 9-408 or 9-409 40(4) of the UCC PPSA (or any successor provision or provisions) provisions of the PPSA of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy lawslaw) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained) (each a “Restricted Right”); provided, however, that such security interest the Security Interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability unenforceability, breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, ; (iii) any consumer goods; and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting the last day of the term of any lease or sublease of real property or any agreement for a Deposit Accountlease or sublease of real property, now held or hereafter acquired by any Assignor, but an Assignor will stand possessed of any such last day upon trust to assign and dispose of it as the Collateral Agent may reasonably direct; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in the preceding clauses (i) through (viiv) hereof, collectively, collectively the “Excluded Assets”);. The Security Interest in respect of each Restricted Right will constitute a trust created in favour of the Collateral Agent for the benefit of the Secured Creditors, pursuant to which such Assignor holds as trustee all proceeds and other benefits arising under or in connection with the Restricted Right in trust for the Collateral Agent, for the benefit of the Secured Creditors, on the following basis (i) until an Event of Default shall have occurred and be continuing such Assignor is entitled to receive all such proceeds and other benefits; and (ii) if any Event of Default shall have occurred and be continuing, (A) all rights of such Assignor to receive such proceeds and other benefits cease and all such proceeds will be immediately paid over to the Collateral Agent for the benefit of the Secured Creditors, and (B) such Assignor will take all actions requested by the Collateral Agent to collect and enforce payment and other rights arising under the Restricted Right.
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors Assignors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the Obligations, each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured Parties, a continuing security interest in all of the right, title and interest of such Grantor in, to and under all of the following personal property (and all rights therein) of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
(i) 1. each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) 2. all cash and Money;
(iii) 3. the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) 4. all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) 5. all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) 6. all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All 7. all Contracts, together with all Contract Rights arising thereunder;
(viii) 8. all Documents;
(ix) 9. all Equipment;
(x) 10. all Fixtures;
(xi) 11. all Goods;
(xii) 12. all Instruments;
(xiii) 13. all Intellectual Property;
(xiv) 14. all Promissory Notes;
(xv) 15. all Inventory;
(xvi) 16. all Investment Property;
(xvii) 17. all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) 18. all General Intangibles;
(xix) 19. all Payment Intangibles (including corporate and other tax refunds);
(xx) 20. all Permits;
(xxi) 21. all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) 22. with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) 23. all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.of
Appears in 1 contract
Sources: Security Agreement and Pledge Agreement (Ciena Corp)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of the Obligations, each Grantor Assignor does hereby assign and transfer unto the First-Lien Collateral Agent, and does hereby pledge and grant to the First-Lien Collateral Agent, Agent for the benefit of the Secured PartiesCreditors, a continuing security interest in in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Receivable;
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required Claims;
(vi) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including but not limited to be provided pursuant to Section 3.1 belowDomain Names and Trade Secret Rights;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all DocumentsCopyrights;
(ix) all Equipment;
(x) all FixturesDeposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(xi) all GoodsDocuments;
(xii) all InstrumentsGeneral Intangibles;
(xiii) all Intellectual PropertyGoods;
(xiv) all Promissory NotesInstruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General IntangiblesMarks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks;
(xix) all Payment Intangibles (including corporate and other tax refunds)Patents;
(xx) all Permits;
(xxi) all books Software and records (including all booksSoftware licensing rights, databasesall writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and recordslicenses, whether tangible and all recorded data of any kind or electronicnature, which contain any information relating to any regardless of the foregoing)medium of recording;
(xxii) with respect to each right to payment or performance included in each of the foregoing, any all Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationObligations; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the First-Lien Collateral Agent under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term continuation of this Agreement. Notwithstanding anything to the contrary contained herein, the Collateral shall at no time include any items which would at such time constitute Excluded Collateral.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(ec) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, relative rights and remedies of First-Lien Collateral Agent shall be subject to and governed by the terms of the Intercreditor Agreement at any time the Intercreditor Agreement is in effect. In the event of any inconsistency between the terms hereof and the covenants hereunder Intercreditor Agreement, the Intercreditor Agreement shall not apply, control at any time the Intercreditor Agreement is in respect of the Excluded Assetseffect.
Appears in 1 contract
Sources: Security Agreement (EnerSys)
Grant of Security Interests. 1) The Debtor hereby grants to the Lender, by way of mortgage, charge, assignment and transfer, a security interest (athe "Security Interest") As security for in the prompt and complete payment and performance when due undertaking of the Obligations, each Grantor does hereby assign Debtor and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured Parties, a continuing security interest in all of the right, title and interest of such Grantor in, to and under all of the following personal property (and all rights therein) of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (Personal Property including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records Goods (including all booksparts, databasesaccessories, customer listsattachments, special tools, additions and recordsaccessions thereto), Accounts, Chattel Paper, Documents of Title (whether tangible negotiable or electronicnot), Instruments, Intangibles, Money and Securities now or hereafter owned or acquired by or on behalf of the Debtor and in all proceeds and renewals thereof, accretions thereto and substitutions therefor (collectively called the "Collateral") including, without limitation, all of the following now or hereafter owned or acquired by or on behalf of the Debtor:
a) all Inventory of whatever kind and wherever situate;
b) all Equipment of whatever kind and wherever situate including, without limitation, all machinery, tools, apparatus, plant, furniture, fixtures and vehicles of whatsoever nature or kind;
c) all accounts and book debts and generally all debts, dues, claims, choses in action and demands of every nature and kind howsoever arising or secured including letters of credit, guarantees and advices of credit which contain any information are now due, owing or accruing or growing due to or owned by or which may hereafter become due, owing or accruing or growing due to or owned by the Debtor;
d) all deeds, documents, writings, papers, books of account and other books relating to any or being records of the foregoing)Accounts, Chattel Paper or Documents of Title or by which such are or may hereafter be secured, evidenced, acknowledged or made payable;
(xxiie) with respect all contractual rights and insurance claims and all goodwill, patents, trademarks, copyrights and other industrial property;
f) all monies other than trust monies lawfully belonging to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligationothers; and
(xxiiig) all substitutionsproperty and assets, replacements accessionsreal and personal, Proceeds tangible and products intangible, movable or immoveable, of whatsoever nature and kind.
2) The Security Interest hereby created shall not extend or attach to any personal property held in trust by the Debtor and all lawfully belonging to others or any property of the foregoing, including collateral security and guarantees with respect to any Debtor that constitutes consumer goods for the personal use of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained)Debtor; provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision last day of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent any lease, oral or any other Secured Party towritten, or transfer agreement therefor, now held or hereafter acquired by the Debtor, provided that upon the enforcement of the Security Interest the Debtor shall stand possessed of such last day in any way affect or modify, any obligation or liability trust to assign and dispose of any Grantor with respect the same to any of person acquiring such term. Unless otherwise defined herein, capitalized terms used herein shall have meanings ascribed thereto in the Collateral or any transaction in connection therewithPPSA, as hereinafter defined.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: General Security Agreement
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, in each case for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
(i) acquired: each and every Account (and Account; all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
(iii) cash; the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) ; all Commercial Tort Claims set forth on (including all Commercial Tort Claims described in Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All D hereto); all Domain Names, Trade Secrets, and other proprietary information, including financial data, personal information, customer lists, supplier lists, business plans, and data collections; all Contracts, together with all Contract Rights arising thereunder;
(viii) ; all Copyrights; all Equipment; all Deposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing; all Documents;
(ix) ; all Equipment;
(x) all Fixtures;
(xi) General Intangibles; all Goods;
(xii) ; all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) ; all Inventory;
(xvi) ; all Investment Property;
(xvii) Property and Securities Accounts; all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) ; all General Intangibles;
(xix) Marks, together with the registrations and right to all Payment Intangibles (including corporate renewals thereof, the goodwill of the business of such Assignor symbolized by the Marks and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible causes of action arising prior to or electronic, which contain any information relating to after the date hereof for infringement of any of the foregoing);
(xxii) Marks or unfair competition regarding the same; all Patents, together with respect all causes of action arising prior to each right to payment or performance included in each after the date hereof for infringement of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of Patents or unfair competition regarding the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”)same;
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Credit Agreement (Town Sports International Holdings Inc)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agentassign, and does hereby pledge pledge, hypothecate and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors, a continuing security interest in in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
acquired: (i) each and every Account (and all rights to receive paymentsReceivable, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
Contracts, together with all Contract Rights arising thereunder, (iii) all Inventory, (iv) all Equipment, (v) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks, (vi) all Patents and Copyrights and all reissues, renewals or extensions thereof, (vii) all computer programs of such Assignor and all intellectual property rights therein and all other Proprietary Information of such Assignor, including, but not limited to, Trade Secret Rights, (viii) all other Goods, General Intangibles, Investment Property, Permits, Chattel Paper, Documents, Instruments and other assets (including cash), (ix) the Cash Collateral Account and all monies, securities, Instruments instruments and other investments deposited or required to be deposited in the such Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
other bank, demand, time savings, cash management, passbook, certificates of deposit and similar accounts maintained by such Assignor and all monies, securities, instruments and other investments deposited or required to be deposited in any of the foregoing accounts, and (xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, collectively, the “"Collateral”").
(b) . Notwithstanding anything herein to the contraryforegoing, in no event shall the security interests and Liens interest granted under Section 1.1(a) hereof attach to, herein shall not extend to and the term “"Collateral” (and the component terms thereof) " shall not include, (i) include any property, interest rights or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than licenses to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant granting of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer 1) would be effective and contrary to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) applicable law or (C2) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement is prohibited by or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of a default under any financial statements required to be delivered pursuant to Section 6.01(a) agreement or 6.01(b) of the Credit Agreement anddocument governing such property, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; rights or licenses (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than but only to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application prohibition is enforceable under applicable federal law (other than to the extent and only for so long as such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”prohibition exists);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Credit Agreement (Sitel Corp)
Grant of Security Interests. (a) As collateral security for the prompt and complete payment and performance when due by each Assignor of the all of such Assignor’s Obligations, and to induce the Administrative Agent and the Lenders to enter into the Credit Agreement and to make the Loans and provide the other financial accommodations to the Borrowers contemplated therein, each Grantor such Assignor does hereby grant, pledge, assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured Partiesin its capacity as Collateral Agent hereunder, subject to Section 1.2, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
created: (i) all cash, accounts, Deposit Accounts, Investment Property, securities accounts, deposits, securities and insurance policies now or at any time hereafter in the possession or under control of such Assignor or its respective bailees and any interest therein, (ii) each and every Account (and all rights to receive paymentsReceivable, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
, and all equity and debt securities and other interests in any and all Unrestricted Subsidiaries, (iv) all Inventory, (v) any cash collateral account established with respect to such Assignor and all monies, securities and instruments deposited or required to be deposited in such cash collateral account, (vi) all Equipment, (vii) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks, (viii) all Documents;
Patents and Copyrights, and all reissues, renewals or extensions thereof, (ix) all Equipment;
computer programs and all intellectual property rights therein and all other proprietary information, including, but not limited to, Trade Secrets, (x) all Fixtures;
vehicles, aircraft, vessels, barges, railcars, rolling stock and fixtures, together with accessions thereto and replacement parts therefor, (xi) (A) all Goods;
Intercompany Notes described in Schedule B (as it may, from time to time, be supplemented in accordance with the terms hereof), all other Intercompany Notes and all other promissory notes which are pledged to the Collateral Agent or otherwise become a part of the Collateral; (B) all shares of capital stock described in Schedule C (as it may, from time to time, be supplemented in accordance with the terms hereof) and all other shares of capital stock or other equity interests; and (C) all Stock Rights, (xii) all Instruments;
books and records, customer lists, ledger cards, credit files, print-outs, and other materials and records pertaining to any of the foregoing, whether now owned or hereafter acquired, (xiii) all Intellectual Property;
other Goods, General Intangibles, Chattel Paper, Documents and Instruments, (xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights Rights, (whether or not the respective letter of credit is evidenced by a writing);
xv) any existing Commercial Tort Claims, (xviiixvi) all General Intangibles;
other personal property of such Assignor, whether now owned or hereafter acquired, (xixxvii) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible documents of title evidencing or electronic, which contain any information relating issued with respect to any of the foregoing);
, and (xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiiixviii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoingforegoing (including, including collateral security without limitation, all insurance and guarantees with claims for insurance effected or held for the benefit of such Assignor in respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing thereof) (all of the above, as limited below, collectively, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such the security interests granted hereunder shall not cover any Assignor’s right, title and interest in any (1) Contract, lease, license or other agreement which by its terms expressly prohibits in a legally valid manner the granting of a security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A)therein, (B2) any asset described in clauses (v) or (Cw) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b7.10(a) of the Credit Agreement and(except, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, case of any other account of the type asset described in clause (ivw) not otherwise constituting a Deposit Account; (vof Section 7.10(a) any Vehicles and other assets subject to certificates of title (other than the Credit Agreement, to the extent such rights can be perfected that the Lender (as defined in that certain Loan Agreement by and among Huntsman Headquarters Corporation, Huntsman Petrochemical Corporation, Huntsman Chemical Corporation, Huntsman Packaging Corporation and U.S. Bank of Utah dated as of December 17, 1996 (the filing “Headquarters Loan Agreement”)) has consented to the grant by Huntsman Headquarters Corporation of a financing statement under security interest in any Collateral (as defined in the UCCHeadquarters Loan Agreement) hereunder); and (vi3) any United States “intent-to-use” Trademark application prior capital stock not required to be pledged hereunder pursuant to Section 7.10(c) or 7.10(e) of the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to Credit Agreement.
(b) The Pledged Intercompany Notes listed on Schedule B and the extent, if any, that, and solely during certificates representing the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law Pledged Stock listed on Schedule C (other than the shares of capital stock of Foreign Subsidiaries which are not certificated) shall have been delivered to the extent Collateral Agent together with appropriate undated note powers and stock powers duly executed in blank on or before the date hereof. Neither the Collateral Agent nor any Secured Party shall be obligated to preserve or protect any rights with respect to the Pledged Intercompany Notes or the Pledged Stock or to receive or give any notice with respect thereto whether or not the Collateral Agent or any Secured Party is deemed to have knowledge of such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);matters.
(c) The assignments and security interest interests under this Agreement granted to the Collateral Agent shall not relieve any Assignor from the performance of any term, covenant, condition or agreement on such Assignor’s part to be performed or observed under or in respect of any of the Collateral pledged by it hereunder or from any liability to any Person under or in respect of any of such Collateral or impose any obligation on the Collateral Agent to perform or observe any such term, covenant, condition or agreement on such Assignor’s part to be so performed or observed or impose any liability on the Collateral Agent for any act or omission on the part of such Assignor relative thereto or for any breach of any representation or warranty on the part of such Assignor contained in this Agreement or any other Loan Document, or in respect of the Collateral pledged by it hereunder or made in connection herewith or therewith. The obligations of each Assignor contained in this paragraph shall survive the termination of this Agreement and the discharge of such Assignor’s other obligations hereunder.
(d) The security interests of the Collateral Agent under this Agreement extends extend to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term continuation of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security Agreement (Huntsman LLC)
Grant of Security Interests. (a) As security for On or prior to the prompt Security Deadline, the Company and complete payment and performance when due of the Obligations, each Grantor does hereby assign and transfer unto Guarantors shall cause the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent (for the benefit of the Secured PartiesCollateral Agent, a continuing security interest in all the Trustee and the holders of the rightNotes) to have valid and perfected Liens on the Initial Notes Collateral that are first in priority on the Initial Notes Collateral, title subject to Permitted Liens. In addition, the Company and interest of such Grantor in, the Guarantors shall on or prior to and under all of the following personal property (and all rights therein) of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedSecurity Deadline:
(ia) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in enter into each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right Collateral Documents necessary in order to payment or performance or secures any such Supporting Obligation; and
cause the Collateral Agent (xxiii) all substitutions, replacements accessions, Proceeds and products of any and all for the benefit of the foregoingCollateral Agent, including collateral security the Trustee and guarantees with respect to any the Holders of the foregoing Notes) to have valid and all cashperfected Liens on the Initial Notes Collateral that are first in priority, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).subject to Permitted Liens;
(b) Notwithstanding anything herein to the contraryexecute, in no event shall the acknowledge, deliver, record, re-record, file, re-file, register and re-register, as applicable, any and all such further acts, deeds, conveyances, security interests agreements, assignments, financing statements and Liens granted under Section 1.1(a) hereof attach tocontinuations thereof, termination statements, notices of assignment, transfers, certificates, assurances and the term “Collateral” (and the component terms thereof) shall not includeother instruments as may be required so that, (i) any property, interest on or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant prior to the terms ofSecurity Deadline, or a default under, any General Intangible, lease, license, contract, agreement or other document, the Collateral Agent (B) a breach of any law or regulation which prohibits for the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 9-406, 9 407, 9-408 or 9-409 benefit of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require Collateral Agent, the consent of a Governmental Authority to permit Trustee and the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any Holders of the consequences specified Notes) shall have valid and perfected Liens on the Initial Notes Collateral that are first in clause (A)priority, (B) or (C) above; subject to Permitted Liens and (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (Liens on the assets described in preceding clauses (i) through (vi) hereof, collectively, and property securing the “Excluded Assets”)Existing Financing Agreements are terminated and released;
(c) The security interest of take such further action and execute and deliver such other documents specified in the Notes Documents or as otherwise may be reasonably requested by the Trustee or the Collateral Agent under this Agreement extends to all Collateral which any Grantor may acquire, or with respect give effect to which any Grantor may obtain rights, at any time during the term of this Agreement.foregoing; and
(d) The Liens hereunder are granted as security only deliver to the Trustee and shall not subject the Administrative Collateral Agent or an Opinion of Counsel that (i) such Collateral Documents and any other Secured Party todocuments required to be delivered have been duly authorized, or transfer or in any way affect or modifyexecuted and delivered by the Company and the Guarantors and constitute legal, any obligation or liability of any Grantor with respect to any valid, binding and enforceable obligations of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein Company and the Guarantors, subject to the contrary, the Grantors make no representations or warranties hereundercustomary qualifications and limitations, and (ii) the covenants hereunder shall not applyCollateral Documents and the other documents entered into pursuant to this Section 4.20 create valid and perfected Liens on the Initial Notes Collateral covered thereby, in respect of the Excluded Assetssubject to Permitted Liens and customary qualifications and limitations.
Appears in 1 contract
Sources: Indenture
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the Obligations, each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant Each Assignor grants to the Collateral AgentAgent Bank, for the benefit of the Secured PartiesBanks, a continuing security interest in all of the such Assignor's right, title and interest of such Grantor in, to and under all of in the following personal property (and all rights therein) of such Grantorproperty, or in which or to which such Grantor has any rights, in each case whether now existing owned by such Assignor or hereafter from time acquired subsequent to time acquired or arising and regardless the date of where locatedthis Agreement:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Accounts Receivable;
(ii) all cash and MoneyGeneral Intangibles (as defined in the Uniform Commercial Code);
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited Inventory (as defined in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13Uniform Commercial Code);
(iv) all Equipment (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited theretoas defined in the Uniform Commercial Code);
(v) all Chattel Paper Goods (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paperas defined in the Uniform Commercial Code);
(vi) all Chattel Paper (as defined in the Uniform Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 belowCode);
(vii) All Contracts, together with all Contract Rights arising thereunderInstruments (as defined in the Uniform Commercial Code);
(viii) all DocumentsDocuments (as defined in the Uniform Commercial Code);
(ix) all Equipmentmoney;
(x) all FixturesPatents and Copyrights and all reissues, renewals or extensions thereof;
(xi) all GoodsMarks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks;
(xii) all Instrumentscomputer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including, but not limited to, Trade Secret Rights;
(xiii) all Intellectual Propertyinsurance policies;
(xiv) all Promissory NotesPermits;
(xv) any and all Inventoryproperty which any Assignor receives or is or may hereafter be entitled to receive on account of any collections of or with respect to such Assignor's Accounts Receivable, or any instrument in payment of or substitution for any of such Assignor's Accounts Receivable or such Assignor's General Intangibles, or any part thereof;
(xvi) any and all Investment Propertyproperty which any Assignor receives or which any Assignor may hereafter become entitled to receive on account of any sale, exchange, transfer or other disposition of such Assignor's Inventory or General Intangibles, or any part thereof;
(xvii) any and all Letter-of-Credit Rights (whether property which each Assignor is or not the respective letter may hereafter become entitled to receive on account of credit is evidenced by a writing);any sale, exchange, transfer or other disposition of such Assignor's Equipment, or any part thereof; and
(xviii) all General Intangibles;the proceeds and products of any sale, exchange, collection or other disposition of any of the foregoing.
(xix) all Payment Intangibles deposit accounts (including corporate and other tax refundsas defined in the Uniform Commercial Code);; and
(xx) all Permits;
investment property (xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of as defined in the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”Uniform Commercial Code).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the its Obligations, each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured Parties, a continuing security interest in all of the right, title and interest of such Grantor in, to and under all of the following personal property (and all rights therein) of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checkscheques, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checkscheques, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Futures Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below[reserved];
(vii) All all Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixturesfixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 9-406, 9 407, 9-408 the PPSA or 9-409 of the UCC other applicable law (or any successor provision or provisions) of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1Grantor; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit AccountAccounts; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCCPPSA or other applicable law); and (vi) any United States ▇▇▇▇▇▇ ▇▇▇▇▇▇ “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCCPPSA or other applicable law); (vii) any Consumer Goods (as defined in the PPSA); and (viii) the last day of the term of any real property lease or agreement therefor, provided that upon enforcement of the security interest, each Grantor shall stand possessed of such last day in trust or assign the same to any person acquiring such term (the assets described in preceding clauses (i) through (viviii) hereof, collectively, the “Excluded Assets”);.
(c) The security interest of the 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.
(d) Each Grantor confirms that value has been given by the Collateral Agent and the Secured Parties to such Grantor, that such Grantor has rights in its Collateral existing at the date of this Agreement or the date of any supplement to this Agreement, as applicable, and that such Grantor and the Collateral Agent have not agreed to postpone the time for attachment of the security interest granted to the Collateral Agent in any of the Collateral of such Grantor pursuant to this Agreement.
(e) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(ef) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the Obligations, each Grantor does hereby pledge, collaterally assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in in, all of the right, title and interest of such Grantor in, to and under all of the following personal property (and all rights therein) of such each Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time arising or acquired or arising and regardless of where located:wherever located (collectively, the “Collateral”):
(i) all Accounts, including, without limitation, each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Receivable;
(ii) all cash and MoneyGoods;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13Inventory;
(iv) all Equipment;
(v) all Documents;
(vi) all Instruments;
(vii) all Chattel Paper;
(viii) all Money;
(ix) all Deposit Accounts, including, but not limited to, the Collateral Concentration Account and all Controlled Deposit Accounts, together with all monies, securities and instruments at any time deposited in any such Deposit Account or otherwise held for the credit thereof;
(x) Deposit all Securities Accounts, collection accounts, disbursement accounts and lock boxes and together with all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held Financial Assets credited therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited theretofrom time to time, and all cashFinancial Assets, Moneymonies, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets cash and other property held therein or credited thereto;
(vxi) all Chattel Paper Investment Property;
(xii) all Fixtures;
(xiii) all As-Extracted Collateral, including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper)Minerals;
(vixiv) all General Intangibles, including, but not limited to, all Contract Rights;
(xv) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 belowClaims;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiiixvi) all Intellectual Property;
(xivxvii) all Letter of Credit Rights;
(xviii) all Payment Intangibles;
(xix) all Promissory Notes;
(xvxx) all InventorySupporting Obligations;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xxxxi) all Permits;
(xxixxii) all books other items, kinds and records (including all bookstypes of personal property, databasestangible or intangible, customer listsof whatever nature, and recordsregardless of whether the creation or perfection or effect of perfection or non-perfection of a security interest therein is governed by the UCC of any particular jurisdiction or by any other applicable treaty, whether tangible convention, statute, law or electronic, which contain regulation of any information relating to any of the foregoing)applicable jurisdiction;
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutionsadditions, replacements modifications, alterations, improvements, upgrades, accessions, components, parts, appurtenances, substitutions and/or replacements of, to or for any of the foregoing; and
(xxiv) all Proceeds and products Products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Pledge and Security Agreement (American Greetings Corp)
Grant of Security Interests. (a) As collateral security for the prompt and complete payment and performance when due by each Assignor of the all of such Assignor’s Obligations, and to induce the Administrative Agent and the Lenders to enter into the Credit Agreement and to make the Loans and provide the other financial accommodations to Borrower contemplated therein, each Grantor such Assignor does hereby grant, pledge, assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured Partiesin its capacity as Collateral Agent hereunder, subject to
Section 1. 2, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
created: (i) all cash, accounts, Deposit Accounts, Investment Property, securities accounts, deposits, securities and insurance policies now or at any time hereafter in the possession or under control of such Assignor or its respective bailees and any interest therein, (ii) each and every Account (and all rights to receive paymentsReceivable, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
, and all equity and debt securities and other interests in any and all Unrestricted Subsidiaries, (iv) all Inventory, (v) any cash collateral account established with respect to such Assignor and all monies, securities and instruments deposited or required to be deposited in such cash collateral account, (vi) all Equipment, (vii) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks, (viii) all Documents;
Patents and Copyrights, and all reissues, renewals or extensions thereof, (ix) all Equipment;
computer programs and all intellectual property rights therein and all other proprietary information, including, but not limited to, Trade Secrets, (x) all Fixtures;
vehicles, aircraft, vessels, barges, railcars, rolling stock and fixtures, together with accessions thereto and replacement parts therefor, (xi) (A) all Goods;
Intercompany Notes described in Schedule B (as it may, from time to time, be supplemented in accordance with the terms hereof), all other Intercompany Notes and all other promissory notes which are pledged to the Collateral Agent or otherwise become a part of the Collateral; (B) all shares of capital stock described in Schedule C (as it may, from time to time, be supplemented in accordance with the terms hereof) and all other shares of capital stock or other equity interests; and (C) all Stock Rights, (xii) all Instruments;
books and records, customer lists, ledger cards, credit files, print-outs, and other materials and records pertaining to any of the foregoing, whether now owned or hereafter acquired, (xiii) all Intellectual Property;
other Goods, General Intangibles, Chattel Paper, Documents and Instruments, (xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights Rights, (whether or not the respective letter of credit is evidenced by a writing);
xv) any existing Commercial Tort Claims, (xviiixvi) all General Intangibles;
other personal property of such Assignor, whether now owned or hereafter acquired, (xixxvii) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible documents of title evidencing or electronic, which contain any information relating issued with respect to any of the foregoing);
, and (xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiiixviii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoingforegoing (including, including collateral security without limitation, all insurance and guarantees with claims for insurance effected or held for the benefit of such Assignor in respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing thereof) (all of the above, as limited below, collectively, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such the security interests granted hereunder shall not cover any Assignor’s right, title and interest in any (1) Contract, lease, license or other agreement which by its terms expressly prohibits in a legally valid manner the granting of a security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A)therein, (B2) any asset described in clauses (t) or (Cu) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b7.11(a) of the Credit Agreement and(except, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, case of any other account of the type asset described in clause (ivu) not otherwise constituting a Deposit Account; (vof Section 7.11(a) any Vehicles and other assets subject to certificates of title (other than the Credit Agreement, to the extent such rights can be perfected that the Lender (as defined in that certain Loan Agreement by and among Huntsman Headquarters Corporation, Huntsman Petrochemical Corporation, Huntsman Chemical Corporation, Huntsman Packaging Corporation and U.S. Bank of Utah dated as of December 17, 1996 (the filing “Headquarters Loan Agreement”)) has consented to the grant by Huntsman Headquarters Corporation of a financing statement under security interest in any Collateral (as defined in the UCCHeadquarters Loan Agreement) hereunder); and (vi3) any United States “intent-to-use” Trademark application prior capital stock not required to be pledged hereunder pursuant to Section 7.11(c) or 7.11(e) of the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to Credit Agreement.
(b) The Pledged Intercompany Notes listed on Schedule B and the extent, if any, that, and solely during certificates representing the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law Pledged Stock listed on Schedule C (other than the shares of capital stock of Foreign Subsidiaries which are not certificated) shall have been delivered to the extent Collateral Agent together with appropriate undated note powers and stock powers duly executed in blank on or before the date hereof. Neither the Collateral Agent nor any Secured Party shall be obligated to preserve or protect any rights with respect to the Pledged Intercompany Notes or the Pledged Stock or to receive or give any notice with respect thereto whether or not the Collateral Agent or any Secured Party is deemed to have knowledge of such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);matters.
(c) The assignments and security interest interests under this Agreement granted to the Collateral Agent shall not relieve any Assignor from the performance of any term, covenant, condition or agreement on such Assignor’s part to be performed or observed under or in respect of any of the Collateral pledged by it hereunder or from any liability to any Person under or in respect of any of such Collateral or impose any obligation on the Collateral Agent to perform or observe any such term, covenant, condition or agreement on such Assignor’s part to be so performed or observed or impose any liability on the Collateral Agent for any act or omission on the part of such Assignor relative thereto or for any breach of any representation or warranty on the part of such Assignor contained in this Agreement or any other Loan Document, or in respect of the Collateral pledged by it hereunder or made in connection herewith or therewith. The obligations of each Assignor contained in this paragraph shall survive the termination of this Agreement and the discharge of such Assignor’s other obligations hereunder.
(d) The security interests of the Collateral Agent under this Agreement extends extend to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term continuation of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security Agreement (Huntsman LLC)
Grant of Security Interests. (a) As Subject to the terms of the Intercreditor Agreement with respect to rights and remedies between the Collateral Agent and the ABL Collateral Agent, as security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth on Annex E hereto Claims;
(vi) all Software and computer programs of such Assignor and all related licensing rights, documentation, drawings, specifications and schematics and all intellectual property rights therein and all other proprietary information of such Assignor, including but not limited to Trade Secret Rights, customer lists and all recorded data of any kind or for which notice is required to be provided pursuant to Section 3.1 belownature, regardless of the medium or recording;
(vii) All all Contracts, together with all Contract Rights arising thereunder;
(viii) all DocumentsCopyrights;
(ix) all EquipmentDeposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing (in each case, excluding Exempted Deposit Accounts);
(x) all FixturesDocuments;
(xi) all GoodsEquipment;
(xii) all InstrumentsGeneral Intangibles;
(xiii) all Intellectual PropertyGoods;
(xiv) all Promissory NotesInstruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General IntangiblesMarks and any renewals thereof, the goodwill of the business of such Assignor symbolized by the Marks and all causes of action arising prior to or after the date hereof for infringement of any of the Marks or unfair competition regarding the same;
(xix) all Payment Intangibles (including corporate and other tax refunds)Patents, together with all causes of action arising prior to or after the date hereof for infringement of any of the Patents or unfair competition regarding the same;
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);Supporting Obligations; and
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”); provided that (x) no Voting Equity Interests (which shall include, for this purpose, the Convertible Preferred Equity Certificates issued by Aleris Luxembourg S.a. ▇.▇.) of any Foreign Corporation which represents more than 65% of the total combined voting power of all classes of Voting Equity Interests of the respective Foreign Corporation (with all Voting Equity Interests of the respective Foreign Corporation in excess of said 65% limit being herein called “Excess Foreign Corporation Equity Interests”) shall secure any direct Obligations of any U.S. Borrower (or guarantees of such Obligations by the respective Assignor) and such Excess Foreign Corporation Equity Interests shall secure Obligations of the respective Assignor only as a guarantor of the Obligations of the German Borrower, and (y) each Assignor shall be required to pledge hereunder 100% of the Non-Voting Equity Interests of each Foreign Corporation at any time and from time to time acquired by such Assignor, which Non-Voting Equity Interests shall not be subject to the limitations described in preceding clause (x).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests Collateral include and Liens no Assignor shall be deemed to have granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 9-406in, 9 407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, Excluded Equipment or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance any of its right, title or interest in any license, contract or agreement to which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting Assignor is a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect theretoparty, to the extent, if anybut only to the extent (and only for so long as) that such license, thatcontract or agreement or applicable law prohibits the assignment of, and solely during the period, if any, in which the grant or granting of a security interest therein would impair in, such license, contract or agreement and such prohibitions are not rendered invalid by Section 9-406 or Section 9-408 of the validity UCC, it being understood and agreed, however, any such excluded license, contract or enforceability of such application under applicable federal law (other than agreement shall otherwise be subject to the extent security interests created by this Agreement (and shall become “Collateral” for all purposes of this Agreement) upon the receipt by such rights can be perfected by Assignor of any necessary approvals or waivers permitting the filing assignment thereof or the granting of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);security interest therein.
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only Notwithstanding anything to the contrary contained in this Section 1.1 or elsewhere in this Agreement, each Assignor and shall not subject the Administrative Collateral Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any (on behalf of the Collateral or any transaction in connection therewith.
(eSecured Creditors) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, acknowledges and the covenants hereunder shall not apply, in respect of the Excluded Assets.agrees that:
Appears in 1 contract
Sources: u.s. Security Agreement (Aleris International, Inc.)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Secured Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured Parties, a continuing security interest in and a lien on all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required Claims;
(vi) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including but not limited to be provided pursuant to Section 3.1 belowDomain Names and Trade Secret Rights;
(vii) All all Contracts, together with all Contract Rights arising thereunder;
(viii) all DocumentsCopyrights;
(ix) all Equipment;
(x) all FixturesDeposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(xi) all GoodsDocuments;
(xii) all InstrumentsGeneral Intangibles;
(xiii) all Intellectual PropertyGoods;
(xiv) all Promissory NotesInstruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General IntangiblesMarks, together with the registrations and right to all renewals thereof, the goodwill of the business of such Assignor symbolized by the Marks and all causes of action arising prior to or after the date hereof for infringement of any of the Marks or unfair competition regarding the same;
(xix) all Payment Intangibles (including corporate and other tax refunds)Patents, together with all causes of action arising prior to or after the date hereof for infringement of any of the Patents or unfair competition regarding the same;
(xx) all Permits;
(xxi) all books Software and records (including all booksSoftware licensing rights, databasesall writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and recordslicenses, whether tangible and all recorded data of any kind or electronicnature, which contain any information relating to any regardless of the foregoing)medium of recording;
(xxii) with respect to each right to payment or performance included in each of the foregoing, any all Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationObligations; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing and all accessions to, substitutions and replacements for, and rents, profits and products of, each of the foregoing, including collateral security and guarantees any and all Proceeds of any insurance, indemnity, warranty or guaranty payable to such Assignors from time to time with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only and . Notwithstanding anything to the contrary contained herein, the term “Collateral” shall not subject include, and the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect security interest granted under this Agreement shall not attach to any of the Collateral or any transaction in connection therewith.
(e) Excluded Asset. Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, lien and security interest granted pursuant to this Agreement and the covenants exercise of any right or remedy hereunder shall not apply, in respect are subject to the provisions of the Excluded AssetsIntercreditor Agreement at any time the Intercreditor Agreement is in effect. In the event of any conflict between the terms of the Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control at any time the Intercreditor Agreement is in effect. In the event of any conflict or inconsistency between the provisions of the Indenture and this Agreement relating to the duties of the Collateral Agent the provisions of the Indenture shall govern and control.
Appears in 1 contract
Sources: Security Agreement
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:acquired:-
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required Claims;
(vi) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including but not limited to be provided pursuant to Section 3.1 belowDomain Names and Trade Secret Rights;
(vii) All all Contracts, together with all Contract Rights arising thereunder;
(viii) all DocumentsCopyrights;
(ix) all Equipment;
(x) all FixturesDeposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(xi) all GoodsDocuments;
(xii) all InstrumentsGeneral Intangibles;
(xiii) all Intellectual PropertyGoods;
(xiv) all Promissory NotesInstruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General IntangiblesMarks, together with the registrations and right to all renewals thereof, the goodwill of the business of such Assignor symbolized by the Marks and all causes of action arising prior to or after the date hereof for infringement of any Marks or unfair competition regarding the same;
(xix) all Payment Intangibles (including corporate Patents and other tax refunds)all causes of action arising prior to or after the date hereof for infringement of any Patents or unfair competition regarding the same;
(xx) all Permits;
(xxi) all books Software and records (including all booksSoftware licensing rights, databasesall writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and recordslicenses, whether tangible and all recorded data of any kind or electronicnature, which contain any information relating to any regardless of the foregoing)medium of recording;
(xxii) with respect to each right to payment or performance included in each of the foregoing, any all Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationObligations; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “"Collateral”").
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(dc) The Liens hereunder are granted as security only Notwithstanding clauses (a) and (b) of this Section 1.1, the payment and performance of the Obligations shall not subject be secured by:
(i) any vehicle covered by a certificate of title or ownership;
(ii) any contract, license, permit or franchise owned or held by an Assignor on the Administrative Effective Date that validly prohibits, restricts or requires the consent of a third party for the creation by such Assignor of a security interest in such contract, license, permit or franchise (or in any rights or property obtained by such Assignor under such contract, license, permit or franchise), except to the extent provided by Sections 9-406, 9-407, 9-408 and 9-409 of the UCC; or
(iii) any rights or property owned or held by an Assignor on the Effective Date to the extent that any valid and enforceable law, statute or regulation applicable to such rights or property or any contracted obligation binding on such rights or property prohibits, restricts or requires the consent of a third party for the creation of a security interest therein on the Effective Date, except to the extent provided by Sections 9-406, 9-407, 9-408 and 9-409 of the UCC; provided, that, notwithstanding the foregoing in this subsection 1.1(c), any such contract, license, permit, franchise, rights and property described above shall be excluded from the Collateral only to the extent and for so long as such prohibition, restriction or third party consent requirement continues validly to prohibit, restrict or require the consent of a third party for the creation of such security interest, and upon the expiration, termination or other lifting of such prohibition, restriction or third party consent requirement, the contracts, licenses, permits, franchises, rights and properties and the rights therein shall automatically be included in the Collateral, without further action on the part of any Assignor, the Collateral Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewithCreditor.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: u.s. Security Agreement (Westborn Service Center, Inc.)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of the ObligationsObligations (excluding the 2003 Senior Secured Notes Obligations and the 2003 Senior Secured Note Refinancing Obligations in the case of an assignment, transfer, grant or pledge of Excluded 2003 Senior Secured Notes Collateral by any Assignor), each Grantor Assignor does hereby assign and transfer unto the Collateral AgentAgent for the benefit of the Secured Creditors (excluding the 2003 Senior Secured Notes Creditor and the 2003 Senior Secured Note Refinancing Creditors (if any) in the case of any assignment, transfer, pledge or grant of Excluded 2003 Senior Secured Notes Collateral by any Assignor), and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors (excluding the 2003 Senior Secured Notes Creditor and the 2003 Senior Secured Note Refinancing Creditors (if any) in the case of any assignment, transfer, pledge or grant of Excluded 2003 Senior Secured Notes Collateral by any Assignor), a continuing security interest in in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case case, whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Receivable;
(ii) all cash and MoneyContracts, together with all Contract Rights arising thereunder;
(iii) all Inventory;
(iv) the Cash Collateral Account and any other cash collateral account established for such Assignor for the benefit of the Secured Creditors and all moniesmoneys, securities, Instruments securities and other investments instruments deposited or required to be deposited in the such Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Equipment;
(vi) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks;
(vii) all Patents and Copyrights and all reissues, renewals and extensions thereof;
(viii) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including, but not limited to, Trade Secrets and Trade Secret Rights;
(ix) all insurance policies;
(x) all other Goods, General Intangibles, Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
, Documents and Instruments of such Assignor (vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixturesexcept Documents and Instruments otherwise covered by the U.S. Pledge Agreement);
(xi) all GoodsPermits;
(xii) all Instrumentscash;
(xiii) all Intellectual PropertyCommercial Tort Claims;
(xiv) all Promissory NotesPerfected Deposit Accounts and all other Deposit Accounts maintained by such Assignor with any Person who shall have entered into a “control agreement” or other arrangement with such Assignor and the Collateral Agent in respect of such other Deposit Account, together with all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(xv) all InventoryInvestment Property (except to the extent otherwise covered by the U.S. Pledge Agreement);
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xvii) all Software and all Software licensing rights, all writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and licenses, and all recorded data of any kind or nature, regardless of the medium of recording;
(xviii) all General IntangiblesSupporting Obligations;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, including this clause (xix), collectively, the “Collateral”).
(b) Notwithstanding anything herein to the contrarycontrary contained above in this Section 1 or elsewhere in this Agreement, in no event Excluded 2003 Senior Secured Notes Collateral hereunder shall secure any of the 2003 Senior Secured Notes Obligations or the 2003 Senior Secured Note Refinancing Obligations (although the Excluded 2003 Senior Secured Notes Collateral shall secure all other Obligations hereunder).
(c) As security interests for the prompt and Liens granted under Section 1.1(a) hereof attach tocomplete payment and performance when due of all of the 2003 Senior Secured Notes Obligations, each Assignor does hereby assign and transfer unto the term “Collateral” (Collateral Agent and does hereby pledge and grant to the component terms thereof) shall not includeCollateral Agent for the benefit of the 2003 Senior Secured Notes Creditor, (i) any propertya continuing security interest in, all of the right, title and interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant Assignor in, to and under all of the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder Collateral (other than the Excluded 2003 Senior Secured Notes Collateral), whether now existing or hereafter from time to time acquired, subject to the extent that any Liens on such term specified Collateral in clause (A) or (B) above is rendered ineffective pursuant to Section 9-406, 9 407, 9-408 or 9-409 favor of the UCC Collateral Agent for the benefit of the Lender Creditors and the Other Creditors. It is understood and agreed that the assignment, transfer, pledge and grant described in the preceding sentence has been incorporated herein (or any successor provision or provisionsout of an abundance of caution) of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require to ensure that this Agreement, which first provides for the consent of a Governmental Authority 2003 Senior Secured Notes Obligations to permit be secured as provided herein on the Restatement Effective Date, validly gives rise to the grant of a security interest therein securing the 2003 Senior Secured Notes Obligations.
(d) Notwithstanding anything to the contrary contained in this Section 1.1 or elsewhere in this Agreement, each of the parties hereto acknowledges and such consent has not been obtained); provided, however, agrees that such (x) the security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and granted pursuant to this Agreement (including pursuant to this Section 1.1) to the extent severableCollateral Agent (i) for the benefit of Lender Creditors and Other Creditors, shall attach immediately to any portion of such property or other rights that does not result be a “first” priority senior security interest in any of the consequences specified in clause (A)Collateral and the Excluded 2003 Senior Secured Notes Collateral, (B) or (C) above; and (ii) for the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 benefit of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the 2003 Senior Secured Parties have made any necessary filings with the FRB in connection therewith Notes Creditor and the Grantors have provided 2003 Senior Secured Note Refinancing Creditors (if any), shall be a “second” priority security interest in the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stockthe Excluded 2003 Senior Secured Notes Collateral) that would constitute Collateral absent this proviso at fully junior, subordinated and subject to the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) security interest granted for the benefit of the Credit Agreement andLender Creditors and the Other Creditors on the terms and conditions set forth in this Agreement, thereafterin the other Security Documents, such Margin Stock shall constitute Collateral in the 2003 Senior Secured Note Documents and in the 2003 Senior Secured Note Refinancing Documents and all other rights and benefits afforded hereunder to the extent the 2003 Senior Secured Parties have made such necessary filings with the FRB in connection therewith Notes Creditor and the Grantors have provided 2003 Senior Secured Note Refinancing Creditors (if any) are expressly subject to the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts terms and conditions of this Agreement, the balance of which consists (x) exclusively of withheld income taxesother Security Documents, employment taxesthe 2003 Senior Secured Note Documents and the 2003 Senior Secured Note Refinancing Documents, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” of any conflict between the provisions of this Agreement or any other Security Document and the provisions of (A) the 2003 Senior Secured Note Documents or such similar term(B) under the ABL Credit 2003 Senior Secured Note Refinancing Documents, any the terms of this Agreement and the other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);Security Documents shall prevail.
(ce) The security interest of the Collateral Agent under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term continuation of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security Agreement (Vertis Inc)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due in full of all the Secured Obligations, each Grantor does hereby assign and transfer unto Debtor (i) reaffirms the Collateral Agent, and does hereby pledge and grant security interest granted pursuant to the Collateral Original Security Agreement and (ii) hereby grants to the Administrative Agent, for the benefit of the Secured Parties, a continuing security interest in all of the Debtors’ right, title and interest of such Grantor in, to and under all of the following personal property (and all rights therein) of such Grantor, or in which or to which such Grantor has any rightsfollowing, in each case case, whether now owned or existing as of the Closing Date or hereafter from time to time thereafter acquired or arising arising, and regardless wherever located (all of where located:which being hereinafter collectively called the “Collateral”):
(ia) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Accounts;
(iib) all cash and MoneyChattel Paper;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vic) all Commercial Tort Claims, including without limitation, the Commercial Tort Claims set forth described on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 belowSchedule II hereto;
(viid) All Contracts, together with all Contract Rights arising thereunderDeposit Accounts;
(viiie) all Documents;
(ixf) all EquipmentGeneral Intangibles;
(x) all Fixtures;
(xig) all Goods;
(xiih) all Instruments;
(xiiii) all Investment Related Property;
(j) all Letter of Credit Rights;
(k) all Money;
(l) all Intellectual Property;
(xivm) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information Supporting Obligations relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiiin) all Proceeds, products, accessions, additions, substitutions, replacements accessionsreplacements, Proceeds rents and products profits of or in respect of any and or all of the foregoing; provided, including collateral however, that the grant of a security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event interest hereunder shall the security interests and Liens granted under Section 1.1(a) hereof not attach to, and the term “Collateral” (and the component terms thereof) shall not include, any of the following: (i) any propertylease, interest license, contract or other rights for so long as agreement to which a Debtor is a party to the extent the grant of such security interest shall constitute or result in (A) the abandonment, invalidation or unenforceability of any right, title or interest of any Debtor therein or (B) in a breach or termination pursuant to the terms of, or a default under, any General Intangible, such lease, license, contract, contract or agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is would be rendered ineffective pursuant to Section Sections 9-406, 9 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy laws) or principles of equity); (ii) any lease, license, contract or (C) require agreement to which any Debtor is a party, any of its rights or interests thereunder or any assets subject thereto to the consent of a Governmental Authority to permit extent that any applicable law prohibits the grant creation of a security interest therein thereon (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 or principles of equity); (iii) any Equity Interests in excess of 65% of all issued and such consent has not been obtainedoutstanding shares of all classes of voting Equity Interests of any First-Tier Foreign Subsidiary; and (iv) any applications for trademarks or service marks filed in the United States Patent and Trademark Office (the “PTO”) pursuant to 15 U.S.C. §1051 Section 1(b) unless and until evidence of use of the m▇▇▇ in interstate commerce is submitted to the PTO pursuant to 15 U.S.C. §1051 Section 1(c) or Section 1(d); provided, howeverfurther, that such (A) with respect to any assets excluded by clauses (i) through (iv) above, the security interest shall attach immediately at such time as the condition causing such abandonmentgranted hereunder, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property lease, license, contract, agreement or other rights asset that does not result in any of the consequences specified described in clause (A), such clauses; and (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type exclusions described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (viiv) hereofabove, collectivelyshall not, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way limit, impair or otherwise affect the Secured Parties’ continuing security interest upon any and all proceeds from the sale, transfer, assignment, license, lease or modifyother disposition of such lease, any obligation license, contract, agreement or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewithother asset.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. Each Grantor hereby grants to the Administrative Agent, for the ratable benefit of the Secured Parties, a security interest in all of the following property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest and wherever located (a) As collectively, the “Collateral”), as collateral security for the prompt and complete payment and performance when due of (whether at the Obligationsstated maturity, each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit by acceleration or otherwise) of the Secured Parties, a continuing security interest in all of the right, title and interest of such Grantor in, to and under all of the following personal property Obligations (and all rights therein) of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:hereafter):
(ia) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Accounts;
(iib) all cash and MoneyChattel Paper;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vic) all Commercial Tort Claims (including those set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 belowSchedule 8);
(viid) All Contractsall Deposit Accounts, together with all Contract Rights arising thereunderSecurities Accounts and all Commodities Accounts;
(viiie) all Documents;
(ixf) all Equipment;
(xg) all Fixtures;
(xih) all General Intangibles;
(i) all Goods;
(xiij) all Instruments;; NY-2366651
(xiiik) all Intellectual Property, and all Intellectual Property Licenses, and all claims for any infringement or other impairment thereof;
(xiv) all Promissory Notes;
(xvl) all Inventory;
(xvim) all Investment PropertyProperty (including all Pledged Collateral);
(xviin) all Letter-of-Credit Rights Rights; Letters of Credit (whether or not as defined in the respective letter of credit is evidenced by a writingUCC), Promissory Notes (as defined in the UCC), and Drafts (as defined in the UCC);
(xviiio) all General IntangiblesMoney;
(xixp) all Payment Intangibles (including corporate and other tax refunds)Receivables;
(xxq) all PermitsBooks and records pertaining to the Collateral;
(xxir) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligationother property not otherwise described above; and
(xxiiis) to the extent not otherwise included, all substitutionsProceeds, replacements accessions, Proceeds Supporting Obligations and products of any and all of the foregoing, including foregoing and all collateral security and guarantees given by an Person with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds foregoing. Notwithstanding any of the foregoing (all of the aboveother provisions set forth in this Section 3, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) this Agreement shall not include, (i) any property, interest or other rights for so long as the constitute a grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than in any property to the extent that such grant of a security interest is prohibited by any Requirement of Law of a Governmental Authority or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property, except (i) to the extent that the terms in such contract, license, instrument or other document providing for such prohibition, breach, default or termination, or requiring such consent are not permitted under the terms and conditions of the Credit Agreement, (ii) to the extent that such Requirement of Law or the term specified in clause (A) such contract, license, agreement, instrument or (B) above other document providing for such prohibition, breach, default or termination or requiring such consent is rendered ineffective pursuant to under Section 9-406, 9 9-407, 9-408 or 9-409 of the New York UCC (or any successor provision or provisions) of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy lawsthe Bankruptcy Code) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonmentRequirement of Law is not effective or applicable, invalidationor such prohibition, unenforceability breach breach, default or termination shall is no longer be effective applicable or is waived, and to the extent severable, shall attach immediately to any portion of such property or other rights the Collateral that does not result in any of the consequences specified in clause (A)such consequences; and provided, (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided howeverfurther, that each applicable Grantor no United States intent-to-use trademark or service mark application shall provide to be included in the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the periodperiod in which, if any, in which the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark or service mark application under applicable federal Federal law (other than to the extent such rights can be perfected by the filing including where a statement of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereofuse has not been filed with, collectivelyand accepted by, the “Excluded Assets”United States Patent and Trademark Office);
(c) The . After such period, each Grantor acknowledges that such interest in such trademark or service mark application shall be subject to a security interest in favor of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or and shall be included in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewithCollateral.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Alkami Technology, Inc.)
Grant of Security Interests. (ai) As Each Canadian Subsidiary Guarantor does hereby assign and transfer unto the DIP Collateral Agents, and does hereby grant to the DIP Collateral Agents for the benefit of the Lenders, as security for the prompt and complete payment and performance when due of all of its Obligations and for the ObligationsObligations of the Canadian Borrower, (ii) each Grantor US Subsidiary Guarantor does hereby assign and transfer unto the DIP Collateral AgentAgents, and does hereby pledge and grant to the DIP Collateral Agent, Agents for the benefit of the Secured PartiesLenders, as security for the prompt and complete payment and performance when due of all of the Obligations of the Borrowers and the Subsidiary Guarantors and (iii) each Borrower does hereby assign and transfer unto the DIP Collateral Agents, and does hereby grant to the DIP Collateral Agents for the benefit of the Lenders, as security for the prompt and complete payment and performance when due of all of the Obligations of such Borrower and of the other Borrower, a continuing security interest of first priority (subject to the Permitted Cash Collateral, Senior Liens and the Carve-Out) in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
acquired: (i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
bank account; (ii) all cash each and Money;
every Receivable; (iii) all Inventory; (iv) the Cash Collateral Account BT Concentration Accounts and all monies, securities, Instruments securities and other investments instruments deposited or required to be deposited in the Cash Collateral AccountBT Concentration Accounts; \\DC - 066299/000158000182 - 9848070 v13
(ivv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity the US Collection Accounts and all cashmonies, Money, marketable securities, Financial Assets securities and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
instruments deposited in the US Collection Accounts; (vi) the Canadian Bank Accounts and all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
monies, securities and instruments deposited in the Canadian Bank Accounts; (vii) All all Contracts, together with all Contract Rights arising thereunder;
; (viii) all Documents;
Equipment including, without limitation, all of the vehicles and rolling stock (and the certificates of title and other registrations relating thereto); (ix) all Equipment;
Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of the Borrowers symbolized by the Marks; (x) all Fixtures;
Patents and Copyrights; (xi) all Goods;
computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including, but not limited to, trade secrets; (xii) all Instruments;
other Goods, General Intangibles, Chattel Paper, Documents and Instruments (other than the Pledged Securities); (xiii) all Intellectual Property;
Real Property Collateral; (xiv) all Promissory Notes;
other interests in personal property of any nature whatsoever; and (xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, collectively, the “"Collateral”"), but excluding, unless the US Interim Order shall become the US Final Order or the US Final Order shall otherwise so provide, the proceeds of avoidance actions pursuant to Chapter 5 of the US Bankruptcy Code.
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the DIP Collateral Agent Agents under this Agreement extends to all Collateral of the kind described in preceding clause (a) which any Grantor each Assignor owns as of the Effective Date and which each Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term continuation of this Agreement.
(d) The Liens hereunder are granted as security only , and shall not subject is entitled to all rights, priorities and benefits afforded by the Administrative Agent or US Bankruptcy Code, the UCC and any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewithrelevant law.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for To secure the prompt due and complete punctual payment of all Finance Obligations, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing or due or to become due, in accordance with the terms thereof and to secure the performance when due of all of the Obligationsobligations of each U.S. Credit Party hereunder and under the other Finance Documents, each Grantor does U.S. Credit Party hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant grants to the U.S. Collateral Agent, Agent for the benefit of the Secured Finance Parties a security interest in, and each U.S. Credit Party hereby pledges and collaterally assigns to the U.S. Collateral Agent for the benefit of the Finance Parties, a continuing security interest in all of the such U.S. Credit Party's right, title and interest of such Grantor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now owned or existing or hereafter from time to time acquired acquired, created or arising arising, whether tangible or intangible, and regardless of where located:located (all of which are herein collectively called the "COLLATERAL"):
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Receivables;
(ii) all cash and MoneyInventory;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13General Intangibles;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xivv) all Promissory NotesDocuments and all Supporting Obligations of any kind given by any Person with respect thereto;
(xvvi) all InventoryEquipment;
(xvivii) all Investment PropertyProperty and all Supporting Obligations of any kind given by any Person with respect thereto;
(xviiviii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing)Assigned Agreements;
(xviiiix) all General IntangiblesDeposit Accounts;
(xixx) all Payment Intangibles (including corporate and other tax refunds)As-Extracted Collateral;
(xxxi) the Collateral Accounts, all Permitscash and other property deposited therein or credited thereto from time to time, the Liquid Investments made pursuant to SECTION 2.08 and other monies and property of any kind of any U.S. Credit Party maintained with or in the possession of or under the control of the U.S. Collateral Agent;
(xxixii) all books and records (including all booksincluding, databaseswithout limitation, customer lists, credit files, computer programs, printouts and other computer materials and records, whether tangible or electronic, which contain any information relating ) of each U.S. Credit Party pertaining to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationCollateral; and
(xxiiixiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to or any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses CLAUSES (i) through (vixii) hereof; PROVIDED, collectivelyHOWEVER, that, except as otherwise required by SECTION 6.10(d) of the Credit Agreement, the “Excluded Assets”);
(c) The security interest Collateral shall not include shares of capital stock having voting power in excess of 65% of the voting power of all classes of capital stock of a Foreign Subsidiary of any U.S. Credit Party if, and solely to the extent that, the inclusion of such shares of capital stock hereunder would cause the undistributed earnings of such Foreign Subsidiary as determined for United States federal income tax purposes to be treated as a deemed repatriation of the earnings of such Foreign Subsidiary to such Foreign Subsidiary's United States parent for United States federal income tax purposes; and PROVIDED, FURTHER, that the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or include any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewithExempt Deposit Accounts.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign (except in the case of Collateral which are ULC Shares) and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document of Title or General Intangible));
(ii) all cash and Moneymoney;
(iii) the Cash Collateral Account and all moniesmoneys, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Moneymoney, checkscheques, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts, Collateral Accounts and Security Entitlements security entitlements and Securities credited thereto, and all cash, Moneymoney, checkscheques, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts commodity accounts and all cash, Moneymoney, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 belowpromissory notes;
(vii) All Contracts, together with all Contract Rights arising thereunderInstruments and Securities;
(viii) all DocumentsInventory;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xviix) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xxxi) to the extent relating to, evidencing or governing any of the items referred to in preceding clauses (i) through (x), all Permits, Documents of Title, Intangibles (including data processing software but excluding Copyrights, Patents, Trade Secrets and Marks), Instruments, letter-of-credit rights, related letters of credit, guarantees and collateral liens and other claims and causes of action, documents of title, customs receipts, insurance, shipping and other documents and other materials related to the foregoing (including to the purchase or import of any Inventory);
(xxixii) to the extent relating to, evidencing or governing any of the items referred to in the preceding clauses (i) through (xi), all Supporting Obligations;
(xiii) all books and records relating to the items referred to in the preceding clauses (i) through (ix) (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoingitems referred to in the preceding clauses (i) through (xii);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation); and
(xxiiixiv) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Moneymoney, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the aboveabove (i) to and including (xiv), collectively, the “Collateral”).;
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests interest and Liens lien granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective against the Collateral Agent pursuant to Section 9-406, 9 407, 9-408 or 9-409 40(4) of the UCC PPSA (or any successor provision or provisions) provisions of the PPSA of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy lawslaw) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained) (each a “Restricted Right”); provided, however, that such security interest the Security Interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability unenforceability, breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, ; (iii) any consumer goods; and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting the last day of the term of any lease or sublease of real property or any agreement for a Deposit Account; (v) lease or sublease of real property, now held or hereafter acquired by any Vehicles Assignor, but an Assignor will stand possessed of any such last day upon trust to assign and other assets subject to certificates dispose of title (other than to it as the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) Collateral Agent may reasonably direct (the assets described in the preceding clauses (i) through (viiv) hereof, collectively, collectively the “Excluded Assets”);. The Security Interest in respect of each Restricted Right will constitute a trust created in favour of the Collateral Agent for the benefit of the Secured Creditors, pursuant to which such Assignor holds as trustee all proceeds and other benefits arising under or in connection with the Restricted Right in trust for the Collateral Agent, for the benefit of the Secured Creditors, on the following basis (i) until an Event of Default shall have occurred and be continuing such Assignor is entitled to receive all such proceeds and other benefits; and (ii) if any Event of Default shall have occurred and be continuing, (A) all rights of such Assignor to receive such proceeds and other benefits cease and all such proceeds will be immediately paid over to the Collateral Agent for the benefit of the Secured Creditors, and (B) such Assignor will take all actions requested by the Collateral Agent to collect and enforce payment and other rights arising under the Restricted Right.
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) . Notwithstanding anything herein to the contrary, the Grantors Assignors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security Agreement (Ciena Corp)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of the Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors, a continuing security interest in of first priority in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
acquired: (i) each and every Account (and all rights to receive paymentsReceivable, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
, (iii) all Inventory, (iv) the Cash Collateral Account and any other cash collateral account established for such Assignor and all moneys, securities and instruments deposited or required to be deposited in such Cash Collateral Account and any such other cash collateral account, (v) all Equipment, (vi) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks, (vii) all Patents and Copyrights, (viii) all Documents;computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including, but not limited to, Trade Secret Rights, (ix)
(ix1) the Concentration Account, (2) all Equipment;moneys, checks, drafts, securities and instruments deposited or required to be deposited in the Concentration Account, (3) all investments and all certificates and instruments, if any, from time to time representing or evidencing such investments and (4) all interest, dividends, cash, investments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the foregoing items listed under subclauses (1) through (3), (x)
(x1) the Concentration Account Consent Letter and each other agreement from time to time entered into by such Assignor with the Concentration Account Bank and all Fixtures;
rights of such Assignor under the Concentration Account Consent Letter and each other agreement from time to time entered into by such Assignor with the Concentration Account Bank with respect to the Concentration Account, (xi) all other Goods;
, General Intangibles, Chattel Paper, Documents and Instruments (other than the Pledged Securities) and (xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, collectively, the “"Collateral”").
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as if any Contract prohibits, or requires the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to consent for (in accordance with the extent severable, shall attach immediately terms thereof after giving effect to any portion of such property or other rights that does not result in any of the consequences specified in clause (Aapplicable laws), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant granting of a security interest therein would impair therein, or in the validity or enforceability event the granting of such application under a security interest in any Contract shall violate applicable federal law (other than law, then the security interest granted hereby shall be limited to the extent (and only to the extent) necessary so that such rights can Contract may not be perfected by so violated or no such violation of law shall exist, as the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);case may be.
(cb) The security interest of the Collateral Agent under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term continuation of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors, a continuing security interest in in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
acquired: (i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
Receivables; (ii) all cash and Money;
Chattel Paper; (iii) the Cash Collateral Account all Documents; (iv) all General Intangibles (including Contract Rights, Permits, payment intangibles, Trade Secret Rights and Software); (v) all moniesGoods (including Inventory, securitiesEquipment and Fixtures); (vi) all Instruments; (vii) all Investment Property; (viii) all Deposit Accounts, Instruments and other investments deposited or required to be deposited in including the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts bank accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
deposits therein; (ix) all Equipment;
money, cash or cash equivalents; (x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Supporting Obligations and Letter-of-Credit Rights Rights; (whether or xi) any commercial tort claims [(provided, however, that as of the date of this Agreement, no such claims exist)]; and (xii) to the extent not the respective letter of credit is evidenced by a writing);
(xviii) otherwise included, all General Intangibles;
(xix) all Payment Intangibles (including corporate Proceeds, tort claims, insurance claims and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating rights to any of the foregoing);
(xxii) with respect to each right to payment or performance payments not otherwise included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds foregoing and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cashaccessions to, Moneysubstitutions and replacements for, insurance proceedsand rents and profits of, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds each of the foregoing (all of the above, collectively, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term of this Agreement.
(dc) The Liens hereunder are granted as Notwithstanding anything to the contrary contained in clauses (a) and (b) above, the security only and interest created by this Agreement shall not extend to, and the term “Collateral” shall not include, any computer program owned or created by such Assignor and any intellectual property rights therein or any other proprietary information (including Trade Secret Rights) of such Assignor that is subject to any agreement which validly prohibits the Administrative creation by such Assignor of a security interest in such computer program and the intellectual property rights therein or other proprietary information; provided, however, that (i) the right to receive payments of money in respect of such computer programs, the intellectual property rights therein and such other proprietary information (or any agreement covering the same) shall not be excluded from the security interest created hereunder and (ii) such rights and property described above shall be excluded from the Collateral only to the extent and for so long as such agreement continues validly to prohibit the creation of such security interest, and upon the expiration of such prohibition, the computer programs and the intellectual property rights therein or other proprietary information as to which such prohibition previously applied shall automatically be included in the Collateral, without further action on the part of any Assignor, the Collateral Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewithCreditor.
(ed) Notwithstanding anything herein to the contrarycontrary contained in clauses (a) and (b) above, the Grantors make no representations or warranties hereundersecurity interest created by this Agreement shall not extend to, and the covenants hereunder term “Collateral” shall not applyinclude, any Equipment or Goods subject to a purchase money Lien permitted under Section 6.02(f), (i) or (j) of the Credit Agreement, in respect each case to the extent, and only to the extent, that the instrument or other agreement evidencing the purchase money Indebtedness or Capitalized Lease Obligations, as the case may be, secured by such Lien expressly and validly prohibits any other Lien on such Equipment or Goods, as the case may be; provided however, that such Equipment and Goods described above shall be excluded from the Collateral only for so long as such purchase money Indebtedness or Capitalized Lease Obligations, as the case may be, remains or remain outstanding and upon the earlier of the Excluded Assetstermination of such prohibition or the satisfaction of such Indebtedness, such Equipment or Goods, as the case may be, shall be included in the term “Collateral” without any further action on the part of any Assignor, the Collateral Agent or any other Secured Creditor.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of the Secured Obligations, each Grantor does hereby assign and transfer unto pledge to the Collateral Administrative Agent, and does hereby pledge and grant to the Collateral Administrative Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor in, to and under all of the following personal property (and all rights therein) of such each Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time arising or acquired or arising and regardless of where located:wherever located (collectively, the “Collateral”):
(i) all Accounts, including, without limitation, each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Receivable;
(ii) all cash and MoneyGoods;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13Inventory;
(iv) all Equipment;
(v) all Documents;
(vi) all Instruments;
(vii) all Chattel Paper;
(viii) all Money;
(ix) all Deposit Accounts, including, but not limited to, the Collateral Concentration Account and all Controlled Deposit Accounts, together with all monies, securities and instruments at any time deposited in any such Deposit Account or otherwise held for the credit thereof;
(x) Deposit all Securities Accounts, collection accounts, disbursement accounts and lock boxes and together with all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held Financial Assets credited therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited theretofrom time to time, and all cashFinancial Assets, Moneymonies, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets cash and other property held therein or credited thereto;
(vxi) all Chattel Paper Investment Property;
(xii) all Fixtures;
(xiii) all As-Extracted Collateral, including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper)Minerals;
(vixiv) all General Intangibles, including, but not limited to, all Contract Rights;
(xv) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 belowClaims;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiiixvi) all Intellectual Property;
(xivxvii) all letters of credit and Letter-of-Credit Rights;
(xviii) all Payment Intangibles;
(xix) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all PermitsSupporting Obligations;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing)insurance claims;
(xxii) with respect to each right to payment all other items, kinds and types of personal property, tangible or performance included in each intangible, of whatever nature, and regardless of whether the foregoingcreation or perfection or effect of perfection or non-perfection of a security interest therein is governed by the UCC of any particular jurisdiction or by any other applicable treaty, convention, statute, law or regulation of any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; andapplicable jurisdiction;
(xxiii) all substitutionsadditions, replacements modifications, alterations, improvements, upgrades, accessions, components, parts, appurtenances, substitutions and/or replacements of, to or for any of the foregoing; and
(xxiv) all Proceeds and products Products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for To secure the prompt due and complete punctual payment and performance when of all Obligations, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing or due or to become due, in accordance with the terms of the ObligationsTransaction Agreement, each Grantor does the Pledgor hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant grants to the Collateral Agent, Agent for its own benefit and for the benefit of the each other Secured Parties, Party a continuing security interest in all of the Pledgor’s right, title and interest in, to and under the following, whether now owned or existing or hereafter acquired, created or arising, whether tangible or intangible, and regardless of where located (all of which are herein collectively called the “Collateral”):
(i) the Equity Interests described on Schedule II hereto, as such schedule may be amended, supplemented or modified from time as may be permitted hereby, and all dividends, distributions, cash, instruments and other property, income, profits and proceeds from time to time received or receivable or otherwise made upon or distributed in respect of or in exchange for any or all of the Pledged Equity Interests;
(ii) all additional or substitute Equity Interests in any Issuer from time to time issued to or otherwise acquired by the Pledgor, including in connection with the payment to the Pledgor of any Earn-Out Payments pursuant to the Transaction Agreement and all dividends, distributions, cash, instruments and other property, income, profits and proceeds from time to time received or receivable or otherwise made upon or distributed in respect of such additional or substitute Equity Interests;
(iii) all right, title and interest of such Grantor inthe Pledgor in each Issuer, to and under including, without limitation:
(A) all of the following personal property (Pledgor’s claims, rights, powers, privileges, authority, options, security interests, liens and all rights therein) remedies, if any, under any limited liability company agreement or operating agreement, or at Law or otherwise in respect of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Pledged Equity Interests;
(iiB) all cash present and Money;future claims, if any, of the Pledgor against any such Issuer for moneys loaned or advanced, for services rendered or otherwise; and
(iiiC) all of the Cash Collateral Account Pledgor’s rights under any limited liability company agreement or operating agreement or at law to exercise and enforce every right, power, remedy, authority, option and privilege of the Pledgor relating to such Pledged Equity Interests, including any power to terminate, cancel or modify any limited liability company agreement or operating agreement, to execute any instruments and to take any and all monies, securities, Instruments other action on behalf of and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accountsname of one or more other Persons in respect of such Pledged Equity Interests and any such Issuer, collection accountsto make determinations, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper to exercise any election (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vielection of remedies) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required option to be provided pursuant to Section 3.1 below;
(vii) All Contractsgive or receive any notice, consent, amendment, waiver or approval, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether full power and authority to demand, receive, enforce, collect or not give receipt for any of the respective letter foregoing or for any assets of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate any such Issuer, to enforce or execute any checks or other instruments or orders, to file any claims and to take any other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to action in connection with any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiiiiv) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to or any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Transaction Agreement (Apollo Global Management LLC)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case case, whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth on Annex E hereto Claims;
(vi) all proprietary information of such Assignor, including but not limited to all writings, plans, specifications and schematics, all engineering drawings, customer lists, all recorded data of any kind or for which notice is required to be provided pursuant to Section 3.1 belownature, regardless of the medium of recording and Trade Secret Rights;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all DocumentsCopyrights;
(ix) all Equipment;
(x) all FixturesDeposit Accounts and all other deposit, cash management and similar accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(xi) all GoodsDocuments;
(xii) all InstrumentsGeneral Intangibles;
(xiii) all Intellectual PropertyGoods;
(xiv) all Promissory NotesInstruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General IntangiblesMarks and Domain Names, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks;
(xix) all Payment Intangibles (including corporate and other tax refunds)Patents;
(xx) all Permits;
(xxi) all books Software and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing)Software licensing rights;
(xxii) with respect to each right to payment or performance included in each of the foregoing, any all Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationObligations; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “"Collateral”").
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(dc) The Liens hereunder are granted as security only and Notwithstanding anything to the contrary in this Agreement, (I) in the event that any Assignor acquires an item of Collateral at any time following the date hereof, such Assignor may elect (which election shall be made by delivering written notice thereof to the Collateral Agent) that such Collateral shall not subject be required to be pledged pursuant to this Agreement as otherwise required above in this Section 1.1 so long as the Administrative Agent book value or fair market value (as determined in good faith by the Borrower), whichever is greater, thereof is less than $1,000,000 (although in no event shall the aggregate book value or fair market value (as determined in good faith by the Borrower), whichever is greater, of all assets excluded from the security interests granted hereunder provided in this clause (c), exceed $5,000,000) and (II) this Agreement shall not constitute a grant of security interest in (i) any assets (including Equity Interests) to the extent that, as of the Effective Date, and for so long as, such grant of a security interest would violate a contractual obligation or applicable law binding on such asset, except to the extent the respective provisions of the contractual obligation or applicable law giving rise to such violation would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC, (ii) any property of any person acquired by an Assignor after the Effective Date pursuant to Section 9.05(xxv) of the Credit Agreement if, and to the extent that, and for so long as, (A) such grant of security interest would violate applicable law or any other Secured Party to, contractual obligation binding upon such property and (B) such law or transfer obligation existed at the time of the acquisition thereof and was not created or made binding upon such property in contemplation of or in any way affect or modifyconnection with the acquisition of such Subsidiary (provided that the foregoing clause (B) shall not apply in the case of a joint venture, any including a joint-venture that is a Subsidiary, except to the extent the respective provisions of the contractual obligation or liability applicable law giving rise to such violation would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC); provided that each Assignor shall use its commercial reasonable efforts to avoid any such restriction described in this clause (ii) or (iii) rights in respect of any Grantor with respect Letter of Credit to the extent any Assignor is required by applicable law to apply the proceeds of the Collateral or any transaction in connection therewitha drawing of such Letter of Credit for a specified purpose.
(ed) Notwithstanding anything herein to the contrarycontrary contained in this Agreement, the Grantors make grant of a security interest hereunder in the Equity Interests of any Foreign Subsidiary by an Assignor (to the extent that such Assignor is not a Foreign Subsidiary) shall be limited solely to no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect more than 65% of the Excluded AssetsVoting Stock and 100% of the Non-Voting Stock of such Assignor's "first tier" Foreign Subsidiaries.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the all of its Obligations, each Grantor in order to induce the Secured Creditors to enter into the Note Purchase Agreement the Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor the Assignor in, to and under all of the following personal property (and all rights therein) of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:acquired):
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes computer programs of the Assignor and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held intel- lectual property rights therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cashother proprietary information of the Assignor, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited theretoincluding but not limited to Trade Secret Rights;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder, including, without limitation, joint venture agreements, partnership agreements, and limited liability company agreements);
(vi) all Copyrights;
(vii) all Equipment;
(viii) all Documents;
(ix) all Equipment;
(x) all FixturesGeneral Intangibles;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual PropertyInventory;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xv) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of the Assignor symbolized by the Marks;
(xvi) all Patents;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing)Permits;
(xviii) all General IntangiblesSoftware and all Software licensing rights, all writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and licenses, and all recorded data of any kind or nature, regardless of the medium of recording;
(xix) all Payment Intangibles (including corporate and other tax refunds)Supporting Obligations;
(xx) all Permits;manuals, training material, diagrams, know how and other necessary or useful materials to utilize the Compan's trade secrets and other business intangibles; and
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “"Collateral”").
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor the Assignor may acquire, or with respect to which any Grantor the Assignor may obtain rights, at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security Agreement (Emagin Corp)
Grant of Security Interests. (a) As security for To secure the prompt and complete payment and performance when due of the Secured Obligations, each Grantor does Debtor hereby assign and transfer unto the Collateral Agentgrants to Secured Party a lien on, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured Parties, a continuing security interest in and right of set-off against any and all of the right, title and interest of such Grantor in, Debtor in and to any and under all of the following personal property (and all rights therein) of such Grantorproperty, or in which or to which such Grantor has any rights, in each case whether now owned or existing or hereafter from time to time created, acquired or arising and regardless of where located:(all being collectively referred to herein as the “Collateral”):
(ia) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Accounts;
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(vb) all Chattel Paper (including, without limitation, including all Tangible Chattel Paper and all Electronic Chattel Paper);
(vic) all Commercial Tort Claims, including those Commercial Tort Claims set forth in which such Debtor has any interest specified on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 belowSchedule 3.9;
(viid) All all Contracts, together with all Contract Rights arising thereunder;
(viiie) all Deposit Accounts, all cash, and other property deposited therein or otherwise credited thereto from time to time and other monies and property in the possession or under the control of Secured Party or any affiliate, representative, agent or correspondent of Secured Party;
(f) all Documents;
(ixg) all EquipmentGeneral Intangibles, including any and all Intellectual Property;
(xh) all Goods any and all Inventory, any and all Equipment and any and all Fixtures;
(xi) all Goods;
(xiii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvij) all Investment Property;
(xviik) all Letter-of-Credit Rights Rights;
(l) all Supporting Obligations;
(m) any and all other personal property and interests in personal property whether or not subject to the respective letter of credit is evidenced by a writing)UCC;
(xviiin) all General Intangibles;
(xix) all Payment Intangibles (including corporate any and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible in whatever form or electronicmedium, which that at any time evidence or contain any information relating to any of the foregoing)foregoing properties or interests in properties or are otherwise necessary or helpful in the collection thereof or realization thereon;
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiiio) all substitutionsAccessions and additions to, and substitutions and replacements accessionsof, Proceeds and products of any and all of the foregoing; and
(p) all Proceeds and products of the foregoing, including collateral security and guarantees with respect all insurance pertaining to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”)proceeds thereof.
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security Agreement (Tel Instrument Electronics Corp)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the Obligations, each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant Each Assignor grants to the Collateral AgentAgent Bank, for the benefit of the Secured PartiesBanks, a continuing security interest in all of the such Assignor's right, title and interest of such Grantor in, to and under all of in the following personal property (and all rights therein) of such Grantorproperty, or in which or to which such Grantor has any rights, in each case whether now existing owned by such Assignor or hereafter from time acquired subsequent to time acquired or arising and regardless the date of where locatedthis Agreement:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Accounts Receivable;
(ii) all cash and MoneyGeneral Intangibles;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13Inventory;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited theretoEquipment;
(v) all Chattel Paper Goods (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paperas defined in the Uniform Commercial Code);
(vi) all Chattel Paper (as defined in the Uniform Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 belowCode);
(vii) All Contracts, together with all Contract Rights arising thereunderInstruments (as defined in the Uniform Commercial Code);
(viii) all DocumentsDocuments (as defined in the Uniform Commercial Code);
(ix) all Equipmentmoney;
(x) all FixturesPatents and Copyrights and all reissues, renewals or extensions thereof;
(xi) all GoodsMarks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks;
(xii) all Instrumentscomputer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including, but not limited to, Trade Secret Rights;
(xiii) all Intellectual Propertyinsurance policies;
(xiv) all Promissory NotesPermits;
(xv) any and all Inventoryproperty which any Assignor receives or is or may hereafter be entitled to receive on account of any collections of or with respect to such Assignor's Accounts Receivable, or any instrument in payment of or substitution for any of such Assignor's Accounts Receivable or such Assignor's General Intangibles, or any part thereof;
(xvi) any and all Investment Propertyproperty which any Assignor receives or which any Assignor may hereafter become entitled to receive on account of any sale, exchange, transfer or other disposition of such Assignor's Inventory or General Intangibles, or any part thereof;
(xvii) any and all Letter-of-Credit Rights (whether property which each Assignor is or not the respective letter may hereafter become entitled to receive on account of credit is evidenced by a writing);any sale, exchange, transfer or other disposition of such Assignor's Equipment, or any part thereof; and
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate the proceeds and products of any sale, exchange, collection or other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to disposition of any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. Concessionaire hereby assigns and transfers
(ai) As security for all Project Accounts (other than the prompt and complete payment and performance when due of the Obligations, each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured Parties, a continuing security interest in all of the right, title and interest of such Grantor in, to and under all of the following personal property (Excluded Accounts) and all rights therein) of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter money from time to time acquired or arising and regardless of where located:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))held by the Security Trustee therein;
(ii) all cash and MoneyAssigned Agreements;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13Chattel Paper;
(iv) all Deposit Accounts (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited theretoincluding each Project Account);
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper)Commercial tort claims from time to time specifically described on Appendix D hereto;
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 belowDocuments;
(vii) All Contracts, together with all Contract Rights arising thereunderEquipment;
(viii) all DocumentsFixtures;
(ix) all EquipmentGeneral Intangibles;
(x) all FixturesInstruments;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xvxii) all Inventory;
(xvixiii) all Investment Property;
(xviixiv) all Project Revenues and all contracts or other rights to receive Project Revenues, including the Concessionaire’s rights, title and interest in and to the Concession Agreement and all other Material Project Contracts;
(xv) all Letter-of-Credit Rights Rights;
(whether xvi) Money;
(xvii) all Governmental Approvals now or not hereafter held in the respective letter of credit is evidenced by a writing)name of, or for the benefit of, Concessionaire;
(xviii) all General Intangiblesbooks and records pertaining to the Collateral;
(xix) all Payment Intangibles (including corporate insurance policies and all proceeds of insurance policies or condemnation proceedings received or receivable by the Concessionaire to the extent not used to repair or rebuild the Project, as may be permitted under the Concession Agreement and other tax refunds)Material Project Contracts;
(xx) to the extent not otherwise included above, all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information other personal property relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiiixxi) to the extent not otherwise included above, all substitutionsProceeds, replacements accessions, Proceeds Supporting Obligations and products of any and all of the foregoing, including foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, foregoing; provided that in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) Collateral include any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Master Security Agreement
Grant of Security Interests. (a) As security for In order to secure its [Canadian Secured Guarantor Obligations], the prompt and complete payment and performance when due of the Obligations, each Lien Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant grants to the Collateral Agent, Agent for the benefit of the Secured Parties, Parties a continuing security interest in all the following property of the right, title and interest of such Grantor in, to and under all of the following personal property (and all rights therein) of such Lien Grantor, or in which or to which such Grantor has any rights, in each case whether now owned or existing or hereafter from time to time acquired or arising and regardless of where located:
, but subject to the exclusions in Section 2(b) (the "New Collateral"): (i) each and every Account (and all rights to receive paymentsAccounts, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
Chattel Paper, (iii) the Cash Collateral Account and all moniesdeeds, securitiesdocuments, Instruments writings, papers, books of account and other investments deposited books relating to or required to being records of debts, Chattel Paper or Documents of Title or by which such are or may hereafter be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
secured, evidenced, acknowledged or made payable, (iv) all Documents of Title (x) Deposit Accountswhether negotiable or not), collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper Equipment, (vi) all Goods (including all parts, accessories, attachments, special tools, additions and accessions thereto), (vii) all Instruments, (viii) all Inventory, (ix) all Intangibles, (x) all Securities directly owned by the Lien Grantor and issued by a Material Canadian Subsidiary, (xi) the Collateral Account, all financial assets credited to the Collateral Account from time to time, all cash deposited therein from time to time and the Liquid Investments made pursuant to Section 8(d) of the Guarantee and Security Agreement, (xii) all books and records (including, without limitation, all Tangible Chattel Paper customer lists, credit files, computer programs, printouts and all Electronic Chattel Paper);
(viother computer materials and records) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required of such Lien Grantor pertaining to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
any of the New Collateral and (xiii) all Proceeds of the New Collateral described in Clauses 2(a)(i) through 2(a)(xii) hereof.
(b) The New Collateral shall not include:
(i) rights of the Lien Grantor in respect of any property or asset which is prohibited from being pledged to the Collateral Agent as part of the New Collateral by any Permitted Encumbrances;
(ii) Program Receivables and (A) security interests or liens and property subject thereto purporting to secure payment of such Program Receivables, (B) leases, guaranties, insurance and other arrangements supporting payment of such Program Receivables, (C) rights to payment and collections in respect of such Program Receivables, (D) books, records and similar information relating to such Program Receivables or the obligors thereon, (E) with respect to any such Program Receivables, the transferee's interest in goods (including, without limitation, Equipment or Inventory) the sale of which gave rise to such Program Receivables and (F) if such Program Receivables arise from a lease financing or installment sale transaction, the Equipment or Inventory that is the subject of the underlying transaction and is transferred to a Receivables SPE;
(iii) Transferred Intellectual Property;
(xiviv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate Federal and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any Provincial Government Receivables of the foregoing)Lien Grantor;
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Canadian Guarantee and Security Agreement (Xerox Corp)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors, a continuing security interest in in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
acquired: (i) each and every Account (and all rights to receive paymentsReceivable, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
Contracts, together with all Contract Rights arising thereunder, (iii) all Inventory, (iv) all Equipment, (v) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks, (vi) all Patents and Copyrights, (vii) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including, but not limited to, Trade Secret Rights, (viii) all other Goods, General Intangibles, Investment Property, Permits, Chattel Paper, Documents, Instruments and other assets (including cash), (ix) the Cash Collateral Account and all monies, securities, Instruments instruments and other investments deposited or required to be deposited in the such Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
other bank, demand, time savings, cash management, passbook, certificates of deposit and similar accounts maintained by such Assignor and all monies, securities, instruments and other investments deposited or required to be deposited in any of the foregoing accounts, and (xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, collectively, the “"Collateral”").
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Credit Agreement (Symons Corp)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case case, whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth on described in Annex E hereto F;
(vi) all proprietary information of such Assignor, including but not limited to all writings, plans, specifications and schematics, all engineering drawings, customer lists, all recorded data of any kind or for which notice is required to be provided pursuant to Section 3.1 belownature, regardless of the medium of recording and Trade Secret Rights;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all DocumentsCopyrights;
(ix) all Equipment;
(x) all FixturesDeposit Accounts and all other deposit, cash management and similar accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(xi) all GoodsDocuments;
(xii) all InstrumentsGeneral Intangibles;
(xiii) all Intellectual PropertyGoods;
(xiv) all Promissory NotesInstruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General IntangiblesMarks and Domain Names, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks;
(xix) all Payment Intangibles (including corporate and other tax refunds)Patents;
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing)Software;
(xxii) with respect to each right to payment or performance included in each of the foregoing, any all Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationObligations; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(c) Notwithstanding anything to the contrary in this Agreement, (I) in the event that any Assignor acquires an item of Collateral at any time following the date hereof a security interest in which can not be perfected by a filing of a UCC financing statement, such Assignor may elect (which election shall be made by delivering written notice thereof to the Collateral Agent) that such Collateral shall not be required to be pledged pursuant to this Agreement as otherwise required above in this Section 1.1 so long as the book value or fair market value (as determined in good faith by the Borrower), whichever is greater, thereof is less than $1,000,000 (although in no event shall the aggregate book value or fair market value (as determined in good faith by the Borrower), whichever is greater, of all assets excluded from the security interests granted hereunder provided in this clause (c)(I), exceed $5,000,000) and (II) this Agreement shall not constitute a grant of security interest in any Excluded Assets.
(d) The Liens hereunder are Notwithstanding anything to the contrary in the Credit Documents, none of the Assignors shall be required, nor is the Collateral Agent authorized, (i) to perfect the Security Interests granted by this Security Agreement (including Security Interests in Investment Property and fixtures) by any means other than by (A) filings pursuant to the UCC in the office of the secretary of state (or similar central filing office or as security only otherwise specified pursuant to the UCC) of the relevant State(s), and shall not subject filings in the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor applicable real estate records with respect to any fixtures relating to Mortgaged Property, (B) filings in United States government offices with respect to United States registered and applied for Patents, Marks and Copyrights of any Assignor as expressly required elsewhere herein, (C) delivery to the Collateral Agent to be held in its possession of all Collateral consisting of Instruments and Chattel Paper as expressly required elsewhere herein or (D) other methods expressly provided herein, (ii) to enter into any deposit account control agreement, securities account control agreement or any other control agreement with respect to any deposit account, securities account or any other Collateral that requires perfection by “control”, (iii) to take any action (other than the actions listed in clause (i)(A) and (C) above) with respect to any assets located outside of the Collateral United States, (iv) to perfect in any assets subject to a certificate of title statute or (v) to deliver any transaction Equity Interests except as expressly provided in connection therewiththe Pledge Agreement.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security Agreement (Central Texas Corridor Hospital Company, LLC)
Grant of Security Interests. (a) As collateral security for (i) the prompt and complete payment and performance Borrowers’ obligations to pay the Lender Debt when due of and payable and their indemnification obligations to the Obligations, Lender Group hereunder and (ii) Parent’s obligations pay the Guaranteed Obligations (as defined in the Parent \39109424 Guaranty) when due and payable and its indemnification obligations to the Lender Group hereunder each Grantor does Borrower and Parent hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured Parties, Lender Group a continuing first-priority Lien (subject only to Permitted Liens) on and security interest in and right of set-off against all of the right, rights title and interest of such Grantor in, Borrower (or Parent as applicable) in and to and under all of the following personal property (and all rights therein) assets of such Grantor, Borrower (or in which or to which such Grantor has any rights, in each case Parent as applicable) whether now existing or hereafter from time to time acquired or arising and regardless wherever located including without limitation all of where located:the following (together with all other collateral provided by the Loan Parties under the other Loan Documents as security for the Lender Debt the "Collateral"):
(i1) all Receivables whether now owned or hereafter acquired;
(2) to the maximum extent permitted by law all deposit accounts of the Parent or such Borrower including without limitation each Lockbox and every each Lockbox Account and amounts held therein;
(3) all money and cash;
(4) all Records relating to items (1) through (3) above;
(5) all general intangibles (other than Receivables and rights under Contracts) including franchise rights licenses patents patent applications trade names and trademarks and Federal state and local tax refund claims of all kinds;
(6) all goods including without limitation all machinery equipment fixtures and all other tangible personal property as well as all of such types of property leased and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper interests with respect thereto under such leases (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(iiwithout limitation options to purchase) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether present and future additions and accessions thereto replacements therefor component and auxiliary parts and supplies used or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included be used in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any connection therewith and all of the foregoing, including collateral security and guarantees with respect to substitutes for any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages manuals drawings instructions warranties and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).rights with respect thereto;
(b7) Notwithstanding anything herein to the contrary, in no event shall the security interests all inventory and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” documents of title relating thereto;
(and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than 8) all Contracts to the extent that any such term specified not included in clause the definition of Receivables;
(A9) or all instruments investment property securities security entitlements and securities accounts;
(B10) above is rendered ineffective pursuant all Equity Interests held by each Borrower and the Parent;
(11) all Records relating to Section 9-406, 9 407, 9-408 or 9-409 of the UCC items (or any successor provision or provisions5) of any relevant jurisdiction or any other then-applicable law through (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C10) above; and
(ii12) the Pledge Agreement Collateral, including all proceeds of any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 kind or nature of the Pledge foregoing. This Agreement or will be deemed to be a security agreement within the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice meaning of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) 2.1 As security for the prompt and complete payment and performance in full of all the Secured Obligations when due of the Obligations(whether at stated maturity, by acceleration or otherwise), each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant grants to the Collateral Agent, Administrative Agent for the benefit of the Secured Parties, Parties a continuing security interest in and lien on all of the such Grantor's right, title and interest of such Grantor in, to and under all of the following personal property (and all rights therein) of such Grantor, or in which or to which such Grantor has any rightsfollowing, in each case case, whether now owned or existing or hereafter from time to time acquired or arising arising, and regardless wherever located (all of where located:which being hereinafter collectively called the "COLLATERAL"):
(i1) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Accounts;
(ii2) all cash and MoneyChattel Paper;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv3) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited theretoContracts;
(v4) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper)the Collateral Account;
(vi5) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 belowCollateral Records;
(vii6) All Contracts, together with all Contract Rights arising thereunderDeposit Accounts;
(viii7) all Documents;
(ix) 8) all Equipment;
(x9) all Fixtures;
(xi10) all GoodsGeneral Intangibles;
(xii) all Instruments;
(xiii11) all Intellectual Property;
(xiv12) all Promissory NotesInterest Rate Agreements;
(xv13) all Instruments;
(14) all Insurance Policies; 238
(15) all Inventory;
(xvi16) all Investment PropertyMoney;
(xvii17) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing)Motor Vehicles;
(xviii18) all General IntangiblesReceivables;
(xix19) all Payment Intangibles (including corporate and other tax refunds)Receivables Records;
(xx20) all Permitsother tangible and intangible personal property;
(xxi21) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationSecurity Collateral; and
(xxiii22) all substitutions, replacements accessions, Proceeds accessions and products of additions to any and or all of the foregoing, including collateral security all substitutions and guarantees with respect to replacements for any or all of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds or products of the foregoing (any or all of the above, the “Collateral”).
(b) foregoing. Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach toCollateral include, and the term “Collateral” no Grantor shall be deemed to have granted a security interest in, any of such Grantor's rights or interests in (and the component terms thereof) shall not include, (ia) any propertyitem of Collateral or any of its rights or interests thereunder to the extent, interest but only to the extent, that such a grant would, under the terms of the license, contract or other rights for so long as the grant agreement underlying such item of such security interest shall constitute or Collateral, result in (A) a breach or termination pursuant to of the terms of, or constitute a default under, any General Intangible, lease, under such license, contract, contract or agreement or other document, (B) to which such Grantor is a breach of any law or regulation which prohibits the creation of a security interest thereunder party (other than to the extent that any such term specified in clause (A) or (B) above is would be rendered ineffective pursuant to Section 9-406, 9 407, 9-408 or 9-409 318(4) of the UCC (or any successor provision or provisions) Uniform Commercial Code of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy lawsthe Bankruptcy Code) or principles of equity) ); PROVIDED, that immediately upon the ineffectiveness, lapse or (C) require termination of any such provision, the consent of a Governmental Authority Collateral shall include, and such Grantor shall be deemed to permit the grant of have granted a security interest therein in, all such rights and interests as if such provision had never been in effect, or (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any b) more than 65% of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision outstanding stock of any other Pledge Agreement, as applicable; (iii) any treasury stock issuer which is a Foreign Subsidiary if the pledge of a Grantor or other Margin Stock, in each case, unless the Secured Parties more than such amount would have made any necessary filings with the FRB in connection therewith material adverse tax consequences for Company and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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 Agreementits Subsidiaries.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. To secure the due and punctual payment of all Obligations, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing or due or to become due, in accordance with the terms hereof and to secure the due and punctual performance of all of the obligations of Borrower contained in the other Loan Documents and in any other documents or instruments to which Borrower and Lender are parties and in order to induce Lender to enter into this Agreement and to make Advances and Term Loan Borrower does hereby mortgage, pledge and assign to Lender (all of which are herein collectively called the "Collateral"):
(a) As security for the prompt and complete payment and performance when due All of the Obligationsland in the county of Sull▇▇▇▇, each Grantor does hereby assign and transfer unto ▇▇ate of Tennessee, described more particularly in the Collateral Agentattached EXHIBIT B, and does hereby pledge and grant which is by this reference fully incorporated herein (referred to hereinafter sometimes as the Collateral Agent, for the benefit of the Secured Parties, a continuing security interest in all of the right, title and interest of such Grantor in"Property"), to have and under all of to hold the following personal property (and all rights therein) of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contractssame, together with all Contract Rights arising thereunder;
(viii) the improvements now or hereafter erected on such Property and all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether fixtures now or not hereafter attached thereto, together with each and every tenements, hereditaments, easements, rights, powers, privileges, immunities and appurtenances thereunto belonging or in anywise appertaining and the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate reversion and other tax refunds);
(xx) all Permits;
(xxi) all books reversions, remainder and records (including all books, databases, customer listsremainders, and recordsalso all the estate, whether tangible or electronicright, which contain any information relating title, interest, homestead, property, possession and claim whatsoever in law as well as in equity of Borrower of, in and to any of the foregoing);
(xxii) with respect to each right to payment or performance included same in each of the foregoing, any Supporting Obligation that supports such payment or performance every part and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”)parcel thereof unto Lender in fee simple.
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of Together with a security interest thereunder in all fixtures affixed to or located on the Property.
(c) Together with all rents, issues, profits, revenue, income and other than benefits from the Property to be applied to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 9-406, 9 407, 9-408 or 9-409 of Obligation secured by the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; Loan Documents provided however, that each applicable Grantor permission is hereby given to Borrower so long as no default has occurred hereunder, to collect, receive, and use such benefits from the Property as they become due and payable, but not in advance thereof. Provided always, that if Borrower shall provide pay to Lender the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso Obligations at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) times and in the manner stipulated by this Agreement, the Revolving Credit Note, the Term Promissory Note and in all other instruments securing the Obligation, including renewals, extension or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accountsmodification thereof, and in this Agreement and in all other instruments securing the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect theretoObligations, to be kept, performed or observed by Borrower, then the extent, if any, that, and solely during the period, if any, in which the grant of a herein described security interest therein would impair in the validity or enforceability of such application under applicable federal law (other than to the extent such rights can Collateral, shall cease and be perfected by the filing of a financing statement under the UCC) (the assets described void, but shall otherwise remain in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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 Agreementfull force and effect.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Loan and Security Agreement (King Pharmaceuticals Inc)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of the Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors, a continuing security interest in of first priority in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Receivable;
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(iii) all Inventory;
(iv) the Cash Collateral Account and any other cash collateral account established for any Assignor and all moneys, securities and instruments deposited or required to be deposited in such Cash Collateral Account;
(v) all Equipment;
(vi) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks;
(vii) all Patents and Copyrights and all reissues, renewals and extensions thereof;
(viii) all Documentscomputer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including, but not limited to, trade secrets and Trade Secret Rights;
(ix) all Equipmentinsurance policies;
(x) all Fixtures;other Goods, General Intangibles, Chattel Paper, Documents and Instruments and other assets of such Assignor (other than the Pledged Securities); and
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, collectively, the “"Collateral”").
(b) Notwithstanding anything herein else in this Agreement to the contrary, in each Secured Creditor (by its acceptance of the benefits provided hereunder) agrees with each Assignor that no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) Secured Creditor is purchasing or acquiring hereunder any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of Receivable but only taking a security interest thereunder (other than therein, provided, however, this Agreement shall not restrict the Collateral Agent's ability to exercise its rights hereunder to the extent permitted by law. Notwithstanding Section 1.1(a), to the extent that any such term specified Contract may be terminated or a default shall be caused thereunder (in clause (A) or (B) above is rendered ineffective pursuant accordance with the terms thereof after giving effect to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require in the consent event of a Governmental Authority to permit the grant granting of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxestherein, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant granting of a security interest therein would impair in any Contract shall violate applicable law, then the validity or enforceability of such application under applicable federal law (other than security interest granted hereby shall be limited to the extent necessary so that such Contract may not be so terminated or no such violation shall exist, as the case may be, and all rights can for money due or to become due under each such Contract and other proceeds shall be perfected by subject to the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);security interest.
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term continuation of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security Agreement (Transworld Home Healthcare Inc)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the all of its Obligations, each Grantor in order to induce the Secured Creditor to enter into the Note Purchase Agreement the Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditor, a continuing security interest in all of the right, title and interest of such Grantor the Assignor in, to and under all of the following personal property (and all rights therein) of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:acquired):
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes computer programs of the Assignor and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held intellectual property rights therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cashother proprietary information of the Assignor, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited theretoincluding but not limited to Trade Secret Rights;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder, including, without limitation, joint venture agreements, partnership agreements, and limited liability company agreements);
(vi) all Copyrights;
(vii) all Equipment;
(viii) all Documents;
(ix) all Equipment;
(x) all FixturesGeneral Intangibles;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual PropertyInventory;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xv) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of the Assignor symbolized by the Marks;
(xvi) all Patents;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing)Permits;
(xviii) all General IntangiblesSoftware and all Software licensing rights, all writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and licenses, and all recorded data of any kind or nature, regardless of the medium of recording;
(xix) all Payment Intangibles (including corporate and other tax refunds)Supporting Obligations;
(xx) all Permits;manuals, training material, diagrams, know how and other necessary or useful materials to utilize the Company's trade secrets and other business intangibles; and
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “"Company Collateral”").
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Company Collateral which any Grantor the Assignor may acquire, or with respect to which any Grantor the Assignor may obtain rights, at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for To secure the prompt due and complete punctual payment of all Finance Obligations, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing or due or to become due, in accordance with the terms thereof and to secure the performance when due of all of the Obligationsobligations of each Credit Party hereunder and under the other Finance Documents, each Grantor does Credit Party hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant grants to the Collateral AgentAgent for the benefit of the Secured Parties a security interest in, and each Credit Party hereby pledges and collaterally assigns to the Collateral Agent for the benefit of the Secured Parties, a continuing security interest in all of the such Credit Party’s right, title and interest of such Grantor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now owned or existing or hereafter from time to time acquired acquired, created or arising arising, whether tangible or intangible, and regardless of where located:located (all of which are herein collectively called the “Collateral”):
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Receivables;
(ii) all cash and MoneyInventory;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13General Intangibles;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xivv) all Promissory NotesDocuments and all Supporting Obligations of any kind given by any Person with respect thereto;
(xvvi) all InventoryEquipment;
(xvivii) all Investment PropertyProperty and all Supporting Obligations of any kind given by any Person with respect thereto;
(xviiviii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing)Deposit Accounts;
(xviiiix) all General IntangiblesAs-Extracted Collateral;
(xixx) the Collateral Accounts, all Payment Intangibles (including corporate cash and other tax refunds)property deposited therein or credited thereto from time to time, the Liquid Investments made pursuant to Section 2.06 and other monies and property of any kind of any Credit Party maintained with or in the possession of or under the control of the Collateral Agent;
(xx) all Permits;
(xxixi) all books and records (including all booksincluding, databaseswithout limitation, customer lists, credit files, computer programs, printouts and other computer materials and records, whether tangible or electronic, which contain any information relating ) of each Credit Party pertaining to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationCollateral; and
(xxiiixii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to or any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vixi) hereof; provided, collectivelyhowever, that, except as otherwise required by Section 8.10 of the Credit Agreement, the “Collateral shall not include (i) any of the outstanding capital stock of, or other equity interests in, any Subsidiary of the Company which is owned by another Subsidiary of the Company; (ii) more than 65% of the outstanding [voting]15 capital stock of, or other equity interests in, any Foreign Subsidiary owned directly by the Company; (iii) any of the outstanding capital stock of, or other equity interests in, ATS or ALC, if and so long as the aggregate book value of their Excluded Assets”Domestic Assets does not exceed the Allowed Exclusion Amount; or (iv) any of the outstanding capital stock of, or other equity interests, in any Subsidiary where such pledge would (A) be prohibited by applicable law, (B) result in material adverse tax consequences to the Company, (C) in the case of Subsidiary which is not a Wholly-Owned Subsidiary or any joint venture existing on the Effective Date, result in a breach of a joint venture agreement, operating agreement or other similar document or agreement in the form existing on the Effective Date, (D) in the case of any Subsidiary which is not a Wholly-Owned Subsidiary or any joint venture created or acquired after the Effective Date, result in a breach of a joint venture agreement, operating agreement or other similar document or agreement, provided that the Company shall use its commercially reasonable efforts to obtain all consents or take such other actions as may be necessary to enable the pledge of such capital stock or other equity interests, or (E) cause the Company to incur costs associated with such pledge that are excessive in comparison to the benefits afforded to the Lenders, as reasonably determined by the Administrative Agent);
, and provided further that to the extent the Company does not ultimately acquire 100% of the outstanding capital stock or other equity interests of any acquired or newly formed Subsidiary in any Permitted Acquisition, notwithstanding clause (civ)(D) The security interest of above but except as provided in clauses (ii) or (iv)(A),(B) and (E) above, the Collateral Agent under this Agreement extends to shall receive a pledge of all outstanding capital stock or other equity interests of such entity held by the Company and provided, further, that the Collateral which shall not include any Grantor may acquireExcluded Contracts, Excluded Equipment or with respect to which any Grantor may obtain rights, at any time during Exempt Deposit Accounts. ___________________________ 15 This issue is currently open in the term of this Credit Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Credit Agreement (Be Aerospace Inc)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor the Borrower does hereby assign assign, pledge and transfer unto the Collateral AgentAgent for the ratable benefit of the Secured Parties, and does hereby pledge and grant to the Collateral Agent, Agent for the ratable benefit of the Secured Parties, a continuing security interest of first priority (subject to Permitted Liens) in all of the right, title and interest of such Grantor the Borrower in, to and under all of the following personal property (and all rights therein) assets of such Grantor, or in which or to which such Grantor has any rights, in each case the Borrower whether now existing or hereafter from time to time acquired or arising and regardless of where located(the “Collateral”), including, without limitation, the following:
(i) each and every Account (and all rights to receive paymentsAll Accounts, indebtedness and other obligations (whether constituting an AccountInventory, Chattel Paper (including Electronic Chattel Paper), InstrumentInstruments, Document or General Intangible));
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accountsSecurities Accounts, disbursement accounts Commodities Accounts, Commercial Tort Claims, Letter of Credit Rights and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper Investment Property (including, without limitation, all Tangible Swap Contracts) now owned or hereafter acquired by the Borrower, together with any property the sale or lease of which has given rise to such Accounts, Inventory, Chattel Paper Paper, Instruments, Deposit Accounts, Securities Accounts, Commodities Accounts, Letter of Credit Rights or Investment Property and all Electronic Supporting Obligations securing the payment of, or performance under, any such Accounts, Inventory, Chattel Paper, Instruments, Deposit Accounts, Securities Accounts, Commodities Accounts, Letter of Credit Rights or Investment Property;
(ii) All other personal property now owned or hereafter acquired by the Borrower, including Documents, Documents of Title, Equipment, machinery, fixtures, licenses, patents, trademarks, contracts, contract rights and other General Intangibles (including, without limitation, all rights of the Borrower under any Swap Contracts);
(iii) All policies of insurance (whether or not required by the Collateral Agent) covering any property referred to herein;
(iv) All books, records, supplies, customer lists and other materials in any way related to any property described herein including computer software, computer files and all licenses and other rights necessary to own, operate and access the same;
(v) All money or property of the Borrower in the Collateral Agent's possession;
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;Cash and investments of the Borrower; and
(vii) All Contractsproceeds, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-products, replacements, additions to, increases of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databasessubstitutions for, customer listsaccessions of, and records, whether tangible or electronic, which contain any information relating to property necessary for the operation of any of the foregoing);
(xxii) with respect property described herein, including insurance payable as a result of loss or damage to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance property and any Lien that secures such right to payment or performance or secures proceeds thereunder, refunds of unearned premiums of any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds insurance policy and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”)claims against third parties.
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are is granted as security only and and, except as expressly set forth herein, shall not subject the Administrative Collateral Agent or any other Secured Party to, or transfer or in any way affect alter or modify, any obligation or liability of any Grantor the Borrower with respect to any or arising out of the Collateral or any transaction in connection therewithCollateral.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Uncommitted Revolving Credit Agreement (Tesoro Corp /New/)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditors, in each case a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (( including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth on described in Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 belowH hereto;
(vi) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including, but not limited to, Trade Secret Rights;
(vii) All all Contracts, together with all Contract Rights arising thereunder;
(viii) all DocumentsCopyrights;
(ix) all Equipment;
(x) all FixturesDeposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(xi) all GoodsDocuments;
(xii) all InstrumentsGeneral Intangibles;
(xiii) all Intellectual PropertyGoods;
(xiv) all Promissory NotesInstruments (other than Instruments constituting Pledged Securities);
(xv) all Inventory;
(xvi) all Investment PropertyProperty (other than Investment Property required to be pledged under the US Pledge Agreement);
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General IntangiblesMarks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks;
(xix) all Payment Intangibles (including corporate and other tax refunds)Patents;
(xx) all Permits;
(xxi) all books Software and records (including all booksSoftware licensing rights, databasesall writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and recordslicenses, whether tangible and all recorded data of any kind or electronicnature, which contain any information relating to any regardless of the foregoing)medium of recording;
(xxii) with respect to each right to payment or performance included in each of the foregoing, any all Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationObligations; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the aboveabove including this clause (xxiii), the “"Collateral”").
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As Subject to the terms of the Intercreditor Agreement with respect to rights and remedies between the Collateral Agent and the Term Collateral Agent, as security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth on Annex E hereto Claims;
(vi) all Software and computer programs of such Assignor and all related licensing rights, documentation, drawings, specifications and schematics and all intellectual property rights therein and all other proprietary information of such Assignor, including but not limited to Trade Secret Rights, customer lists and all recorded data of any kind or for which notice is required to be provided pursuant to Section 3.1 belownature, regardless of the medium or recording;
(vii) All all Contracts, together with all Contract Rights arising thereunder;
(viii) all DocumentsCopyrights;
(ix) all EquipmentDeposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing (in each case, excluding Exempted Deposit Accounts);
(x) all FixturesDocuments;
(xi) all GoodsEquipment;
(xii) all InstrumentsGeneral Intangibles;
(xiii) all Intellectual PropertyGoods;
(xiv) all Promissory NotesInstruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General IntangiblesMarks and any renewals thereof, the goodwill of the business of such Assignor symbolized by the Marks and all causes of action arising prior to or after the date hereof for infringement of any of the Marks or unfair competition regarding the same;
(xix) all Payment Intangibles (including corporate and other tax refunds)Patents, together with all causes of action arising prior to or after the date hereof for infringement of any of the Patents or unfair competition regarding the same;
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);Supporting Obligations; and
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”); provided that (x) no Voting Equity Interests (which shall include, for this purpose, the Convertible Preferred Equity Certificates issued by Aleris Luxembourg S.à.r.▇.) of any Foreign Corporation which represents more than 65% of the total combined voting power of all classes of Voting Equity Interests of the respective Foreign Corporation (with all Voting Equity Interests of the respective Foreign Corporation in excess of said 65% limit being herein called “Excess Foreign Corporation Equity Interests”) shall secure any direct Obligations of any U.S. Borrower (or guarantees of such Obligations by the respective Assignor) and such Excess Foreign Corporation Equity Interests shall secure Obligations of the respective Assignor only as a guarantor of the Obligations of the Canadian Borrowers and their Subsidiaries and the European Borrower and its Subsidiaries, and (y) each Assignor shall be required to pledge hereunder 100% of the Non-Voting Equity Interests of each Foreign Corporation at any time and from time to time acquired by such Assignor, which Non-Voting Equity Interests shall not be subject to the limitations described in preceding clause (x).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests Collateral include and Liens no Assignor shall be deemed to have granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 9-406in, 9 407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, Excluded Equipment or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance any of its right, title or interest in any license, contract or agreement to which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting Assignor is a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect theretoparty, to the extent, if anybut only to the extent (and only for so long as) that such license, thatcontract or agreement or applicable law prohibits the assignment of, and solely during the period, if any, in which the grant or granting of a security interest therein would impair in, such license, contract or agreement and such prohibitions are not rendered invalid by Section 9-406 or Section 9-408 of the validity UCC, it being understood and agreed, however, any such excluded license, contract or enforceability of such application under applicable federal law (other than agreement shall otherwise be subject to the extent security interests created by this Agreement (and shall become “Collateral” for all purposes of this Agreement) upon the receipt by such rights can be perfected by Assignor of any necessary approvals or waivers permitting the filing assignment thereof or the granting of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);security interest therein.
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(d) The Liens Notwithstanding anything to the contrary contained in this Section 1.1 or elsewhere in this Agreement, each Assignor and the Collateral Agent (on behalf of the Secured Creditors) acknowledges and agrees that:
(x) the security interest granted pursuant to this Agreement (including pursuant to this Section 1.1) to the Collateral Agent for the benefit of the Secured Creditors (i) in the ABL Priority Collateral, shall be a First Priority Lien and (ii) in the Term Priority Collateral, shall be a Second Priority Lien, fully junior, subordinated and subject to the security interest granted to the Term Collateral Agent for the benefit of the Term Creditors in the Term Priority Collateral on the terms and conditions set forth in the Term Credit Documents and the Intercreditor Agreement and all other rights and benefits afforded hereunder are granted as security only and shall not subject to the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor Creditors with respect to any the Term Priority Collateral are expressly subject to the terms and conditions of the Collateral or any transaction in connection therewith.Intercreditor Agreement; and
(ey) Notwithstanding anything herein to the contrary, Term Secured Parties’ security interests in the Grantors make no representations or warranties hereunder, Collateral constitute security interests separate and apart (and of a different class and claim) from the covenants hereunder shall not apply, Secured Creditors’ security interests in respect of the Excluded AssetsCollateral.
Appears in 1 contract
Sources: u.s. Security Agreement (Aleris International, Inc.)
Grant of Security Interests. (a) As security for the --------------------------- prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors, a continuing security interest in of first priority in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
acquired: (i) each and every Account (and all rights to receive paymentsReceivable, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
Contracts (other than Excluded Contracts except to the extent provided in the definition thereof), together with all Contract Rights arising thereunder, (iii) all Inventory, (iv) all Equipment, (v) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks, (vi) all Patents and Copyrights, (vii) all computer programs of such Assignor and all intellectual property rights therein (to the extent not constituting Excluded Contracts) and all other proprietary information of such Assignor, including, but not limited to, trade secrets, (viii) all other Goods, General Intangibles, Chattel Paper, Documents and Instruments, (ix) the Cash Collateral Account and all monies, securities, Instruments securities and other investments instruments deposited or required to be deposited in the such Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, collectively, the “"Collateral”"). Notwithstanding the foregoing, the term "Collateral" shall not include any Specified Asset that is transferred to the Receivables Entity pursuant to (but only after the execution and delivery of) the Accounts Receivable Facility Documents.
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term continuation of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, including without limitation, limitation all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required Claims;
(vi) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including but not limited to be provided pursuant to Section 3.1 belowDomain Names and Trade Secret Rights;
(vii) All all Contracts, together with all Contract Rights arising thereunder;
(viii) all DocumentsCopyrights;
(ix) all Equipment;
(x) all FixturesDeposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(xi) all GoodsDocuments;
(xii) all InstrumentsGeneral Intangibles;
(xiii) all Intellectual PropertyGoods;
(xiv) all Promissory NotesInstruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General IntangiblesMarks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks;
(xix) all Payment Intangibles (including corporate and other tax refunds)Patents;
(xx) all Permits;
(xxi) all books Software and records (including all booksSoftware licensing rights, databasesall writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and recordslicenses, whether tangible and all recorded data of any kind or electronicnature, which contain any information relating to any regardless of the foregoing)medium of recording;
(xxii) with respect to each right to payment or performance included in each of the foregoing, any all Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationObligations; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “"Collateral”").
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(dc) The Liens hereunder are granted as security only Notwithstanding clauses (a) and (b) of this Section 1.1, the payment and performance of the Obligations shall not subject be secured by:
(i) any contract, license, permit or franchise that validly prohibits, restricts or requires the Administrative consent of a third party for the creation by such Assignor of a security interest in such contract, license, permit or franchise (or in any rights or property obtained by such Assignor under such contract, license, permit or franchise) except to the extent provided by Sections 9-406, 9-407, 9-408 and 9-409 of the UCC; or
(ii) any rights or property to the extent that any valid and enforceable law, statute or regulation applicable to such rights or property prohibits, restricts or requires the consent of a third party for the creation of a security interest therein except to the extent provided by Sections 9-406, 9-407, 9-408 and 9-409 of the UCC; provided, that, notwithstanding the foregoing in this subsection 1.1(c), (x) any such contract, license, permit, franchise, rights and property described above shall be excluded from the Collateral only to the extent and for so long as such prohibition, restriction or third party consent requirement continues validly to prohibit, restrict or require the consent of a third party for the creation of such security interest, and upon the expiration, termination or other lifting of such prohibition, restriction or third party consent requirement, the contracts, licenses, permits, franchises, rights and properties and the rights therein shall automatically be included in the Collateral, without further action on the part of any Assignor, the Collateral Agent or any other Secured Party toCreditor and (y) any right to payment or other monies due under any such contract, license, permit, franchise, rights or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of property described above shall not be excluded from the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein and shall at all times be subject to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assetssecurity interest created pursuant to this Agreement.
Appears in 1 contract
Sources: Security Agreement (Dominos Inc)
Grant of Security Interests. (a) As security for The Debtor hereby assigns and pledges to the prompt and complete payment and performance when due of the Obligations, each Grantor does hereby assign and transfer unto the Collateral AgentSecured Party, and does hereby pledge its successors and grant assigns, and grants to the Collateral AgentSecured Party, for the benefit of the Secured Partiesand its successors and assigns, a perfected and continuing lien and security interest interest, prior to all other liens and security interests (except for Permitted Liens, but only to the extent permitted by the Credit Agreement), on and in all of the rightDebtor's property described below, title whether now owned or existing or hereafter acquired, arising or created, and interest of such Grantor in, to and under all of the following personal property (and all rights therein) of such Grantor, or in which or to which such Grantor has any Debtor's rights, titles and interests in each case whether now existing or hereafter from time and to time acquired or arising and regardless of where relating to all such property, wherever located:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts products thereof and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper proceeds derived therefrom (including, without limitation, proceeds of insurance):
(a) All personal property of the Debtor, including without limitation the following, all Tangible Chattel Paper whether now owned or hereafter acquired or arising and all Electronic Chattel Paperwherever located: (i) accounts (including health-care-insurance receivables and credit card receivables);
; (ii) securities entitlements, securities accounts, commodity accounts, commodity contracts and investment property; (iii) deposit accounts; (iv) instruments (including promissory notes); (v) documents (including warehouse receipts); (vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
chattel paper (including electronic chattel paper and tangible chattel paper); (vii) All Contractsinventory, together with all Contract Rights arising thereunder;
including raw materials, work in process, or materials used or consumed in Debtor's business, items held for sale or lease or furnished or to be furnished under contracts of service, sale or lease, goods that are returned, reclaimed or repossessed; (viii) all Documents;
goods of every nature, including stock-in-trade, goods on consignment, standing timber that is to be cut and removed under a conveyance or contract for sale, computer programs embedded in such goods and farm products; (ix) all Equipment;
equipment, including machinery, vehicles and furniture; (x) all Fixtures;
fixtures; (xi) all Goods;
agricultural liens; (xii) all Instruments;
as-extracted collateral; (xiii) all Intellectual Property;
commercial tort claims, if any, described on Schedule 1 hereto; (xiv) all Promissory Notes;
letter of credit rights; (xv) general intangibles, of every kind and description, including payment intangibles, software, computer information, source codes, object codes, records and data, all Inventory;
existing and future customer lists, choses in action, claims (including claims for indemnification or breach of warranty), books, records, patents and patent applications, copyrights, trademarks, tradenames, tradestyles, trademark applications, goodwill, blueprints, drawings, designs and plans, trade secrets, contracts, licenses, license agreements, formulae, tax and any other types of refunds, returned and unearned insurance premiums, rights and claims under insurance policies; (xvi) all Investment Property;
supporting obligations of all of the foregoing property; (xvii) all Letter-property of the Debtor now or hereafter in the Secured Party's possession or in transit to or from, or under the custody or control of-Credit Rights (whether , the Secured Party or not the respective letter of credit is evidenced by a writing);
any affiliate thereof; (xviii) all General Intangibles;
cash and cash equivalents thereof; and (xix) all Payment Intangibles cash and noncash proceeds (including corporate insurance proceeds) of all of the foregoing property, all products thereof and all additions and accessions thereto, substitutions therefor and replacements thereof.
(b) All books, records, documents, ledger receipts and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating of the Debtor pertaining to any of the foregoing);
(xxii) , including, without limitation, all customer lists, credit files, computer records, computer programs, storage media and computer software used or required in connection with respect the establishment, generation, processing, maintenance or storage of such books, records or documents or otherwise used or acquired in connection with documenting information pertaining to each right to payment or performance included in each any of the foregoingaforesaid collateral. All of the Debtor's property described in items (a) and (b) above, any Supporting Obligation that supports such payment or performance both inclusive, as well as all products and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any proceeds thereof and all of the foregoingDebtor's rights, including collateral security titles and guarantees with respect interests in and to any of the foregoing and relating to all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any such property, interest whether now owned or other rights for so long existing or hereafter acquired or created, are hereinafter referred to collectively and individually as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement "Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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".
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Secured Obligations, each Grantor does hereby assign and transfer unto the Collateral Agent, and Assignor does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title title, interest, powers, remedies, privileges and interest other benefits of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where wherever located:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth described on Annex E Schedule 5 hereto as updated from time to time;
(vi) all computer programs owned by such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including but not limited to Domain Names and Trade Secret Rights, together with all causes of action arising prior to or after the date hereof for which notice is required infringement of such rights or unfair competition regarding the same and all income, royalties, damages and payments now or hereafter due with respect to be provided pursuant to Section 3.1 belowany of the foregoing;
(vii) All all Contracts, together with all Contract Rights arising thereunder;
(viii) all DocumentsCopyrights, together with all causes of action arising prior to or after the date hereof for infringement of any Copyrights or unfair competition regarding the same and all income, royalties, damages and payments now or hereafter due with respect to any of the foregoing;
(ix) all Equipment;
(x) all FixturesDeposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all monies deposited or required to be deposited in any of the foregoing;
(xi) all GoodsDocuments;
(xii) all InstrumentsGeneral Intangibles (including any Equity Interests in other Persons that do not constitute Investment Property);
(xiii) all Intellectual PropertyGoods;
(xiv) all Promissory NotesInstruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General IntangiblesMarks, together with the registrations and right to all renewals thereof, the goodwill of the business of such Assignor symbolized by the Marks and all causes of action arising prior to or after the date hereof for infringement of any of the Marks or unfair competition regarding the same and all income, royalties, damages and payments now or hereafter due with respect to any of the foregoing;
(xix) all Payment Intangibles (including corporate Patents, together with all causes of action arising prior to or after the date hereof for infringement of any of the Patents or unfair competition regarding the same and other tax refunds)all income, royalties, damages and payments now or hereafter due with respect to any of the foregoing;
(xx) all Permits;
(xxi) all books Software and records (including all booksSoftware licensing rights, databasesall writings, plans, specifications and schematics, all engineering drawings, customer lists, credit files, goodwill and recordslicenses, whether tangible and all recorded data of any kind or electronicnature, which contain regardless of the medium of recording;
(xxii) all Supporting Obligations;
(xxiii) all other intellectual and similar property of every kind and nature and all embodiments or fixations thereof and related documentation, registration and franchises, together with all causes of action arising prior to or after the date hereof for infringement of any information relating such rights or unfair competition regarding the same and all income, royalties, damages and payments now or hereafter due with respect to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiiixxiv) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
; provided that no Assignor shall be required to grant a security interest hereunder in (b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for Excluded Collateral (so long as the grant of such security interest shall constitute or result same remains “Excluded Collateral” in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings accordance with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCCdefinition thereof); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);.
(cb) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(dc) The Liens hereunder are granted as Notwithstanding anything to the contrary contained herein:
(i) the property subject to the security only interest reflected in this instrument includes all of the right, title and shall not subject interest of each Assignor in certain mortgages and/or participation interests related to such mortgages (“Pooled Mortgages”) and pooled under the Administrative Agent or any other Secured Party tomortgage-backed securities program of the Government National Mortgage Association (“GNMA”), or transfer or pursuant to section 306(g) of the National Housing Act, 12 U.S.C. § 1721(g);
(ii) to the extent that the security interest reflected in this instrument relates in any way affect to the Pooled Mortgages, such security interest is subject and subordinate all rights, powers and prerogatives of GNMA, whether now existing or modifyhereafter arising, under and in connection with: (i) 12 U.S.C. § 1721(g) and any obligation or liability implementing regulations; (ii) the terms and conditions of any Grantor that certain GNMA Acknowledgment Agreement, with respect to any the Security Interest (as defined in the GNMA Acknowledgement Agreement); (iii) applicable Guaranty Agreements (as defined in the GNMA Acknowledgement Agreement) and contractual agreements between GNMA and Reverse Mortgage Solutions, Inc.; and (iv) the GNMA Mortgage-Backed Securities Guide, Handbook 5500.3 Rev. 1, and other applicable guides (items (i), (iii) and (iv), collectively, the “▇▇▇▇▇▇ ▇▇▇ Contract”); it being understood that in the event the enforcement of such security interest could reasonably be expected to conflict with the provisions of the GNMA Acknowledgment Agreement referenced in item (ii) above, the terms, conditions and restrictions imposed under the GNMA Acknowledgment Agreement shall control;
(iii) such rights, powers and prerogatives of GNMA include, but are not limited to, GNMA’s right, by issuing a letter of extinguishment to each Assignor, to effect and complete the extinguishment of all redemption, equitable, legal or other right, title or interest of each Assignor in the Pooled Mortgages, in which event the security interest as it relates in any way to the Pooled Mortgages shall instantly and automatically be extinguished as well; and
(iv) for purposes of clarification, “subject and subordinate” in clause (ii) above means, among other things, that any cash held by the Collateral Agent as collateral and any cash proceeds received by the Collateral Agent in respect of any sale or other disposition of, collection from, or other realization upon, all or any transaction part of the collateral may only be applied by the Collateral Agent to the extent that such proceeds have been received by, or for the account of, the Debtor free and clear of all GNMA rights and other restrictions on transfer under applicable GNMA guidelines; provided that this clause (iv) shall not be interpreted as establishing rights in connection therewithfavor of GNMA except to the extent that such rights are reflected in, or arise under, the ▇▇▇▇▇▇ ▇▇▇ Contract.
(ed) Notwithstanding anything herein to the contrarycontrary contained herein, at any time during which a ▇▇▇▇▇▇▇ Acknowledgement Agreement has been entered into and is effective, the Grantors make no representations security interest created by this Agreement in the Servicing Security Interest (as defined in the ▇▇▇▇▇▇▇ Acknowledgement Agreement) is subject and subordinate in each and every respect to (a) all rights, powers and prerogatives of one or warranties hereundermore of the following: the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association, the GNMA, or such other investors that own mortgage loans, or which guaranty payments on securities based on and backed by pools of mortgage loans, identified on the exhibit(s) or schedule(s) attached to this financing statement (each, an “Investor”); and (b) all claims of an Investor arising out of or relating to any and all breaches, defaults and outstanding obligations of the debtor to the Investor. Such rights, powers and prerogatives of each Investor may include, without limitation, one or more of the following: the right of an Investor to disqualify (in whole or in part) the debtor named herein from participating in a mortgage selling or servicing program or a securities guaranty program with the Investor; the right to terminate (in whole or in part) contract rights of the debtor relating to such a mortgage selling or servicing program or securities guaranty program; and the covenants hereunder shall not apply, in respect right to transfer and sell all or any portion of such contract rights following the Excluded Assetstermination of those rights.
Appears in 1 contract
Sources: Credit Agreement (Walter Investment Management Corp)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign (except in the case of Collateral which are ULC Shares) and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document of Title or General Intangible));
(ii) all cash and Moneymoney;
(iii) the Cash Collateral Account and all moniesmoneys, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Moneymoney, checkscheques, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts, Collateral Accounts and Security Entitlements security entitlements and Securities credited thereto, and all cash, Moneymoney, checkscheques, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts commodity accounts and all cash, Moneymoney, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 belowpromissory notes;
(vii) All Contracts, together with all Contract Rights arising thereunderInstruments and Securities;
(viii) all DocumentsInventory;
(ix) all Equipment;
(x) all FixturesGoods;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xviixii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xxxiii) to the extent relating to, evidencing or governing any of the items referred to in preceding clauses (i) through (xii), all Permits, Documents of Title, Intangibles (including data processing software but excluding Copyrights, Patents, Trade Secrets and Marks), Instruments, letter-of-credit rights, related letters of credit, guarantees and collateral liens and other claims and causes of action, documents of title, customs receipts, insurance, shipping and other documents and other materials related to the foregoing (including to the purchase or import of any Inventory);
(xxixiv) to the extent relating to, evidencing or governing any of the items referred to in the preceding clauses (i) through (xiii), all Supporting Obligations;
(xv) all books and records relating to the items referred to in the preceding clauses (i) through (x) (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoingitems referred to in the preceding clauses (i) through (xiii);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiiixvi) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Moneymoney, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing foregoing; and
(xvii) (all of the aboveabove (i) to and including (xvi), collectively, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective against the Collateral Agent pursuant to Section 9-406, 9 407, 9-408 or 9-409 40(4) of the UCC PPSA (or any successor provision or provisions) provisions of the PPSA of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy lawslaw) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained) (each a “Restricted Right”); provided, however, that such security interest the Security Interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability unenforceability, breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, ; (iii) any consumer goods; and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting the last day of the term of any lease or sublease of real property or any agreement for a Deposit Accountlease or sublease of real property, now held or hereafter acquired by any Assignor, but an Assignor will stand possessed of any such last day upon trust to assign and dispose of it as the Collateral Agent may reasonably direct; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in the preceding clauses (i) through (viiv) hereof, collectively, collectively the “Excluded Assets”);. The Security Interest in respect of each Restricted Right will constitute a trust created in favour of the Collateral Agent for the benefit of the Secured Creditors, pursuant to which such Assignor holds as trustee all proceeds and other benefits arising under or in connection with the Restricted Right in trust for the Collateral Agent, for the benefit of the Secured Creditors, on the following basis (i) until an Event of Default shall have occurred and be continuing such Assignor is entitled to receive all such proceeds and other benefits; and (ii) if any Event of Default shall have occurred and be continuing,
(A) all rights of such Assignor to receive such proceeds and other benefits cease and all such proceeds will be immediately paid over to the Collateral Agent for the benefit of the Secured Creditors, and (B) such Assignor will take all actions requested by the Collateral Agent to collect and enforce payment and other rights arising under the Restricted Right.
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors Assignors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the First-Lien Collateral Agent, and does hereby pledge and grant to the First-Lien Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and MoneyCash Equivalents;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth on Annex E hereto Claims;
(vi) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including but not limited to all Software, and all Software licensing rights, all writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and licenses, and all recorded data of any kind or for which notice is required to be provided pursuant to Section 3.1 belownature, regardless of the medium of recording;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all DocumentsCopyrights;
(ix) all EquipmentDeposit Accounts and all other demand, deposit, time, savings, cash management and passbook accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited in any of the foregoing;
(x) all FixturesDocuments;
(xi) all GoodsDomain Names;
(xii) all InstrumentsEquipment;
(xiii) all Intellectual PropertyGeneral Intangibles;
(xiv) all Promissory NotesGoods;
(xv) all Instruments;
(xvi) all Inventory;
(xvixvii) all Investment Property;
(xviixviii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds)Marks;
(xx) all PermitsPatents;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing)Permits;
(xxii) with respect to each right to payment or performance included in each of the foregoing, any all Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; andObligations;
(xxiii) all substitutions, replacements accessions, Trade Secret Rights; and
(xxiv) all Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of any item excluded pursuant to the foregoing next succeeding sentence (except to the extent such proceeds would independently be excluded pursuant to said sentence) (all of the above, the “Collateral”).
(b) . Notwithstanding anything herein to the contrarycontrary contained above, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach toCollateral include, and the term “Collateral” no Assignor shall be deemed to have granted a security interest (unless and the component terms thereofuntil as further provided below) shall not include, in (ia) any propertylease, interest license, contract, property rights or other agreement to which any Assignor is a party or any of its rights or interests thereunder or property subject thereto if and for so long as the grant of such security interest shall constitute or result in (Ai) the abandonment, invalidation or unenforceability of same or (ii) in a breach or termination pursuant to the terms of, or a default under, any General Intangible, such lease, license, contract, property rights or agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in the case of preceding clause (Ai) or (Bii), as applicable) above is would be rendered ineffective pursuant to Section Sections 9-406, 9 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy lawsthe Bankruptcy Code) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); , provided, however, that such the security interest interests hereunder shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach (x) immediately to any portion of such lease, license, contract, property rights or other rights agreement that does not result in any of the consequences specified in clause (A), (Bi) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside to any property or assets described above in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in this clause (iva) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to on the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in first date upon which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets circumstances described in preceding clauses (i) through and/or (viii) hereof(as relevant) no longer exist with respect thereto, collectively, or (b) more than 65% of the “Excluded Assets”);Voting Equity Interests of any Foreign Corporation; provided that each Assignor shall be required to pledge hereunder 100% of any Non-Voting Equity Interests at any time and from time to time acquired by such Assignor of any Foreign Corporation.
(cb) The security interest of the First-Lien Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(ec) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, relative rights and remedies of First-Lien Collateral Agent shall be subject to and governed by the terms of the Intercreditor Agreement at any time the Intercreditor Agreement is in effect. In the event of any inconsistency between the terms hereof and the covenants hereunder Intercreditor Agreement, the Intercreditor Agreement shall not apply, control at any time the Intercreditor Agreement is in respect of the Excluded Assetseffect.
Appears in 1 contract
Sources: Security Agreement (RCN Corp /De/)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Municipal Obligations, each Grantor the Assignor does hereby pledge, assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the ratable benefit of the Secured Parties, Parties a continuing security interest in in, all of the right, title and interest of such Grantor the Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
acquired: (i) each and every Account (and all rights to receive paymentsPledged Municipal Recovery, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash each and Money;
every Pledged Municipal Premium, (iii) any and all Pledged Municipal Reserves Account Funds, (iv) each and every Municipal Receivable; (v) all Municipal Contracts, together with all Municipal Contract Rights arising thereunder; (vi) the Cash Municipal Collateral Account and the Pledged Municipal Reserves Account and all monies, securities, Instruments securities and other investments instruments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement such accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required investments from time to be provided pursuant to Section 3.1 below;
time therein; (vii) All Contractsall other Municipal General Intangibles, together with all Contract Rights arising thereunder;
Municipal Chattel Paper, Municipal Documents and Municipal Instruments; and (viii) all Documents;
(ix) proceeds and all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate additions, replacements and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information substitutions relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, collectively, the “"Municipal Collateral”").
(b) Notwithstanding anything herein As security for the prompt and complete payment and performance when due of all of its Structured Obligations, the Assignor does hereby pledge, assign and transfer unto the Collateral Agent, and does hereby grant to the contraryCollateral Agent for the ratable benefit of the Secured Parties a continuing security interest in, in no event shall all of the security interests right, title and Liens granted interest of the Assignor in, to and under Section 1.1(a) hereof attach toall of the following, and the term “Collateral” (and the component terms thereof) shall not include, whether now existing or hereafter from time to time acquired: (i) any propertyeach and every Pledged Structured Recovery, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateraleach and every Pledged Structured Premium, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stockand all Pledged Structured Reserves Account Funds, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans each and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Accountevery Structured Receivable; (v) any Vehicles all Structured Contracts, together with all Structured Contract Rights arising thereunder; (vi) the Structured Collateral Account and the Pledged Structured Reserves Account and all monies, securities and instruments deposited or required to be deposited in such accounts and all investments from time to time therein; (vii) all other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC)Structured General Intangibles, Structured Chattel Paper, Structured Documents and Structured Instruments; and (viviii) all proceeds and all additions, replacements and substitutions relating to or of any United States “intent-to-use” Trademark application prior to and all of the filing foregoing (all of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereofabove, collectively, the “Excluded Assets”);
(c) The security interest of "Structured Collateral" and, together with the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contraryMunicipal Collateral, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets"Collateral").
Appears in 1 contract
Grant of Security Interests. (a) As security for To secure the prompt payment, performance and complete payment and performance when due observance of the Secured Obligations, each Grantor does Debtor hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant grants to the Collateral AgentTrustee, for the security and benefit of the Secured PartiesIndenture and of the Notes secured hereby, a continuing security interest in in, right of setoff against, and an assignment to Trustee of all of the right, title and interest of such Grantor in, to and under all of the following Debtor's personal property (and all rights therein) of such Grantor, or in which or to which such Grantor has any rightspersonal property, in each case case, whether now owned or existing or hereafter from time to time acquired or arising and regardless of where located:located and shall include the following (all being collectively referred to herein as the "Collateral"):
(iA) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Accounts;
(iiB) all cash and MoneyInventory;
(iiiC) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited theretoGeneral Intangibles;
(vD) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ixE) all Instruments;
(F) Equipment;
(xG) all Fixtures;
(xiH) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xviiI) Chattel Paper;
(J) Commercial Tort Claims, including those specified on Schedule IV;
(K) Deposit Accounts, all cash, and other property deposited therein from time to time and other monies and property in the possession or under the control of Trustee or any Holder or any affiliate, representative, agent or correspondent of Trustee or any Holder;
(L) Goods;
(M) Letter-of-Credit Rights Rights;
(N) Supporting Obligations;
(O) All other personal property whether or not subject to the respective letter of credit is evidenced by a writing);UCC:
(xviiiP) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all All books, databases, customer lists, and records, whether tangible ledger cards, files, correspondence, computer programs, tapes, disks and related data processing Software that at any time evidence or electronic, which contain any information relating to any of the foregoing);
property described in subparts (xxiiA) with respect to each right to payment through (O) above or performance included are otherwise necessary or helpful in each of the foregoing, any Supporting Obligation that supports such payment collection thereof or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligationrealization thereon; and
(xxiiiQ) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to or any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing property described in subparts (all of the A) through (P) above, the “Collateral”).
(b) . Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens interest granted under Section 1.1(a) hereof hereunder attach to, and the term “Collateral” to (and the component terms thereof) shall not include, (ia) any propertylease, interest license, contract, property rights or other agreement to which Debtor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (Ai) the abandonment, invalidation or unenforceability of any right, title or interest of Debtor therein or (ii) in a breach or termination pursuant to the terms of, or a default under, any General Intangible, such lease, license, contract, property rights or agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is would be rendered ineffective pursuant to Section 9-406, 9 407, 9-408 or 9-409 of by the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy lawsthe Bankruptcy Code) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); , provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidationinvalidation or unenforceability shall be remedied and, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such lease, license contract, property right or other rights agreement that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through or (viii); or (b) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the outstanding capital stock of a Foreign Subsidiary in excess of 65% of the voting power of all classes of capital stock of such Foreign Subsidiary entitled to vote, provided that, upon an amendment to the IRC to allow a pledge of a greater percentage of the voting power of capital stock in a Foreign Subsidiary without adverse tax consequences to Debtor, the Collateral or any transaction in connection therewith.
(e) shall include, and the security interest granted by the Debtor shall attach to, such greater percentage of capital stock of each Foreign Subsidiary. Notwithstanding anything herein to the contrary, so long as no Event of Default has occurred and is continuing, Debtor shall have the Grantors make no representations or warranties hereunderexclusive, non-transferable right and license to use the Intellectual Property and the covenants hereunder shall not apply, in exclusive right to grant to other Persons licenses and sublicenses with respect of to the Excluded AssetsIntellectual Property.
Appears in 1 contract
Grant of Security Interests. Each Grantor hereby grants to the Administrative Agent, for the ratable benefit of the Secured Parties, a security interest in all of the following property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest and wherever located (a) As collectively, the “Collateral”), as collateral security for the prompt and complete payment and performance when due of (whether at the Obligationsstated maturity, each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit by acceleration or otherwise) of the Secured Parties, a continuing security interest in all of the right, title and interest of such Grantor in, to and under all of the following personal property Obligations (and all rights therein) of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:hereafter):
(ia) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Accounts;
(iib) all cash and MoneyChattel Paper;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vic) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 belowClaims;
(viid) All Contracts, together with all Contract Rights arising thereunderDeposit Accounts and all Securities Accounts;
(viiie) all Documents;
(ixf) all Equipment;
(xg) all Fixtures;
(xih) all General Intangibles;
(i) all Goods;
(xiij) all Instruments;
(xiiik) all Intellectual Property;
(xiv) all Promissory Notes;
(xvl) all Inventory;
(xvim) all Investment PropertyProperty (including all Pledged Collateral);
(xviin) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing)Rights;
(xviiio) all General IntangiblesMoney;
(xixp) all Payment Intangibles (including corporate Books and other tax refunds)records pertaining to the Collateral;
(xxq) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligationother property not otherwise described above; and
(xxiiir) to the extent not otherwise included, all substitutionsProceeds, replacements accessions, Proceeds Supporting Obligations and products of any and all of the foregoing, including foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing and all cashforegoing; provided, Moneyhowever, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of that notwithstanding anything to the foregoing contrary contained in clauses (all of the a) through (q) above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach created by this Agreement shall not extend to, and the term “Collateral” (and including all of the component terms thereofindividual items comprising Collateral) shall not include, (i) any propertyExcluded Assets. Notwithstanding any of the other provisions set forth in this Section 3, interest or other rights for so long as the this Agreement shall not constitute a grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than in any property to the extent that such grant of a security interest is prohibited by any Requirement of Law of a Governmental Authority or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such term specified property, except (i) to the extent that the terms in clause (A) such contract, license, instrument or other document providing for such prohibition, breach, default or termination, or requiring such consent are not permitted under the terms and conditions of the Credit Agreement or (Bii) above to the extent that such Requirement of Law or the term in such contract, license, agreement, instrument or other document providing for such prohibition, breach, default or termination or requiring such consent is rendered ineffective pursuant to under Section 9-406, 9 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy lawsthe Bankruptcy Code) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonmentRequirement of Law is not effective or applicable, invalidationor such prohibition, unenforceability breach breach, default or termination shall is no longer be effective applicable or is waived, and to the extent severable, shall attach immediately to any portion of such property or other rights the Collateral that does not result in any of the consequences specified in clause (A)such consequences; and provided, (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided howeverfurther, that each applicable Grantor no United States intent-to-use trademark or service ▇▇▇▇ application shall provide to be included in the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the periodperiod in which, if any, in which the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark or service ▇▇▇▇ application under applicable federal law (other than Federal law. After such period, each Grantor acknowledges that such interest in such trademark or service ▇▇▇▇ application shall be subject to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest in favor of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or and shall be included in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewithCollateral.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Benefitfocus,Inc.)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of the ObligationsObligations (excluding the Existing Senior Subordinated Secured Notes Obligations in the case of an assignment, transfer, grant or pledge of Excluded Existing Senior Subordinated Secured Notes Collateral by any Assignor), each Grantor Assignor does hereby assign and transfer unto the Collateral AgentAgent for the benefit of the Secured Creditors (excluding the Existing Senior Subordinated Secured Notes Creditor in the case of any assignment, transfer, pledge or grant of Excluded Existing Senior Subordinated Secured Notes Collateral by any Assignor), and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors (excluding the Existing Senior Subordinated Secured Notes Creditor in the case of any assignment, transfer, pledge or grant of Excluded Existing Senior Subordinated Secured Notes Collateral by any Assignor), a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case case, whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims Claims, including, without limitation, those set forth on Annex E hereto or for which notice is required F hereto;
(vi) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including but not limited to be provided pursuant to Section 3.1 belowDomain Names and Trade Secret Rights;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all DocumentsCopyrights;
(ix) all Equipment;
(x) all FixturesDeposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(xi) all GoodsDocuments;
(xii) all InstrumentsGeneral Intangibles;
(xiii) all Intellectual PropertyGoods;
(xiv) all Promissory NotesInstruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General IntangiblesMarks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks;
(xix) all Payment Intangibles (including corporate and other tax refunds)Patents;
(xx) all Permits;
(xxi) all books Software and records (including all booksSoftware licensing rights, databasesall writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and recordslicenses, whether tangible and all recorded data of any kind or electronicnature, which contain any information relating to any regardless of the foregoing)medium of recording;
(xxii) with respect to each right to payment or performance included in each of the foregoing, any all Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; andObligations;
(xxiii) all substitutions, replacements accessions, Tractor Trailers; and
(xxiv) all Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrarycontrary contained above in this Section 1 or elsewhere in this Agreement, in no event Excluded Existing Senior Subordinated Secured Notes Collateral hereunder shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in secure any of the consequences specified in clause Existing Senior Subordinated Secured Notes Obligations (Aalthough the Excluded Existing Senior Subordinated Secured Notes Collateral shall secure all other Obligations hereunder), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);.
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(d) The Liens hereunder are Notwithstanding anything to the contrary contained in Section 1.1(a) above, in no event shall the Collateral include, and no Assignor shall be deemed to have granted as a security interest in any of such Assignor’s rights or interests in any license, contract or agreement to which such Assignor is a party or any of its rights or interests thereunder to the extent, but only and shall not subject to the Administrative Agent extent, that such a grant would, under the terms of such license, contract or agreement or otherwise, result in a breach of the terms of, or constitute a default under any license, contract or agreement to which such Assignor is a party (other than to the extent that any such term would be rendered ineffective pursuant to the UCC or any other Secured Party toapplicable law (including the Bankruptcy Code) or principles of equity); provided, however, that (x) immediately upon the ineffectiveness, lapse or transfer or in any way affect or modify, any obligation or liability termination of any Grantor with such provision (as a result of a change in law, receipt of an appropriate consent or otherwise), the Collateral shall include, and such Assignor shall be deemed to have granted a security interest in, all such rights and interests without any further action on the part of such Assignor or any Secured Creditor as if such provision had never been in effect and (y) the right to receive payments of money or other consideration in respect to of such license, contract or agreement shall not be excluded from the security interest created hereunder. In the event that any asset of the Assignor is excluded from the Collateral by virtue of this paragraph, such Assignor, upon the request of the Collateral or any transaction Agent, shall use all reasonable efforts to enable such Assignor to provide a security interest in connection therewithsuch asset pursuant hereto as promptly as practicable.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, including without limitation, limitation all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required Claims;
(vi) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including but not limited to be provided pursuant to Section 3.1 belowDomain Names and Trade Secret Rights;
(vii) All all Contracts, together with all Contract Rights arising thereunder;
(viii) all DocumentsCopyrights;
(ix) all Equipment;
(x) all FixturesDeposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(xi) all GoodsDocuments;
(xii) all InstrumentsGeneral Intangibles;
(xiii) all Intellectual PropertyGoods;
(xiv) all Promissory NotesInstruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General IntangiblesMarks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks;
(xix) all Payment Intangibles (including corporate and other tax refunds)Patents;
(xx) all Permits;
(xxi) all books Software and records (including all booksSoftware licensing rights, databasesall writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and recordslicenses, whether tangible and all recorded data of any kind or electronicnature, which contain any information relating to any regardless of the foregoing)medium of recording;
(xxii) with respect to each right to payment or performance included in each of the foregoing, any all Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationObligations; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “"Collateral”").
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(dc) The Liens hereunder are granted as security only Notwithstanding clauses (a) and (b) of this Section 1.1, the payment and performance of the Obligations shall not subject be secured by:
(i) any contract, license, permit or franchise that validly prohibits, restricts or requires the Administrative consent of a third party for the creation by such Assignor of a security interest in such contract, license, permit or franchise (or in any rights or property obtained by such Assignor under such contract, license, permit or franchise) except to the extent provided by Sections 9-406, 9- 407, 9-408 and 9-409 of the UCC;
(ii) any rights or property to the extent that any valid and enforceable law, statute or regulation applicable to such rights or property prohibits, restricts or requires the consent of a third party for the creation of a security interest therein except to the extent provided by Sections 9-406, 9-407, 9-408 and 9-409 of the UCC, provided, that, notwithstanding the foregoing in this subsection 1.1(c), any such contract, license, permit, franchise, rights and property described above shall be excluded from the Collateral only to the extent and for so long as such prohibition, restriction or third party consent requirement continues validly to prohibit, restrict or require the consent of a third party for the creation of such security interest, and upon the expiration, termination or other lifting of such prohibition, restriction or third party consent requirement, the contracts, licenses, permits, franchises, rights and properties and the rights therein shall automatically be included in the Collateral, without further action on the part of any Assignor, the Collateral Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewithCreditor.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security Agreement (Dominos Inc)
Grant of Security Interests. (a) As security for the To secure Borrowers' prompt and complete payment and performance when due of all the ObligationsObligations Borrowers owe to Lender under any Loan Document, each Grantor does hereby assign Borrower, through this instrument, irrevocably grants to Lender, its successors and transfer unto assigns, a right of set-off against and a continuing first position (except for the Collateral Agent"Permitted Liens") security interest and first Lien (collectively the "Security Interests") in and to all the following property and interests in property of such Borrower, whether now owned or existing or subsequently acquired or arising, and does hereby pledge and grant to wherever located (collectively, the Collateral Agent, for the benefit of the Secured Parties, a continuing security interest in all of the right, title and interest of such Grantor in, to and under all of the following personal property (and all rights therein) of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
"Collateral"): (i) each all Accounts, Inventory, Equipment, Fixtures, machinery, vehicles, general business assets, contracts and every Account contract rights, General Intangibles (other than "intent to use" Trademark registrations and all rights to receive paymentsapplications), indebtedness and other obligations (whether constituting an Accounttax refunds, Chattel Paper (including Electronic Chattel Paper), InstrumentCash Equivalents, Document or General Intangible));
capital contributions, instruments, notes Collateral Records, letters of credit, Documents and documents of title; (ii) all cash Deposit Accounts (general or special) with and Money;
credits and other claims against any depository bank therefor or Lender, or any other financial institutions with which such Borrower maintains deposits (if any) and all amounts deposited therein: (iii) the Cash Collateral Account all now owned or subsequently acquired Monies, and any and all moniesother tangible or intangible property, securitiesand all know-how or technology or applications of technology developed therefrom, Instruments and other investments deposited whether or required to be deposited not now or subsequently coming into the actual possession, custody or control of Lender or any agent or affiliate of Lender in the Cash Collateral Accountany way or for any purpose (whether for safekeeping, deposit, custody, pledge, transmission, collection or otherwise); \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences Insurance Policies of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cashproceeds from Insurance Policies from any life insurance policy covering the life of any director, Moneyofficer, insurance proceedsemployee or former director, Instrumentsofficer or employee of such Borrower, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of if such Borrower is the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach tobeneficiary thereof, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded all proceeds from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit AccountInsurance Policies covering business interruption insurance; (v) all books and records relating to any Vehicles of the preceding; (vi) all good will and going concern value of such Borrower's business; (vii) all Stock or other assets subject to certificates ownership interests in each of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC)Subsidiaries; and (viviii) any United States “intent-all accessions and additions to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, thatsubstitutions for, and solely during the periodreplacements, if any, in which the grant products and Proceeds of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest any of the Collateral Agent under preceding. Borrowers and Lender specifically intend and agree that the term "Collateral" as defined in this Agreement extends includes all property and interests in property of each Borrower, whether real, personal, intangible, inchoate or otherwise, whether now existing or subsequently acquired or arising/or whether or not specifically enumerated in this Agreement, except as identified specifically on attached Schedule 4.1. Borrowers therefore acknowledge and agree that the term "Collateral" as defined in this Agreement is to all Collateral which any Grantor may acquirebe construed in the broadest manner possible, or with respect to which any Grantor may obtain rightsand if, after the Effective Date, at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modifyfrom time to time, any obligation Borrower acquires any property or liability of any Grantor with respect to any interest in property (real, personal, intangible, inchoate or otherwise) that is not described or adequately described in this Section 4.1, Borrowers will notify Lender of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereundersame, and the covenants hereunder shall not applyparties will amend this Section 4.1 to cover specifically any such items, in respect of if Lender deems the Excluded Assetssame necessary.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of the Obligations, each Grantor does hereby pledge, collaterally assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors, a continuing security interest in and Lien upon, all of the right, title and interest of such Grantor in, to and under all personal and fixture Property of every kind and nature, whether tangible or intangible, including, without limitation, all of the following personal property (right, title and all rights therein) interest of such GrantorGrantor in, or in which or to which such Grantor has any rightsand under each of the following, in each case whether now existing or hereafter from time to time acquired hereafter created, arising or arising and regardless of where located:
acquired: (i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
Receivable; (ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
; (iii) all Inventory; (iv) all monies, securities and Instruments deposited or required to be deposited to Cash Collateralize any Letter of Credit Obligations; (v) all Equipment; (vi) all Marks, Patents and Copyrights, and all other Intellectual Property; (vii) all computer programs and computer software of every description and all intellectual property rights therein, and all other proprietary information, including, but not limited to, Trade Secret Rights; (viii) all Documents;
other Goods, General Intangibles, Chattel Paper, Documents and Instruments; (ix) all Equipment;
FCC Licenses (PROVIDED, HOWEVER, that the Security Agreement Collateral shall not include at any time any FCC Licenses to the extent, but only to the extent, that such Grantor is prohibited at that time from granting a security interest therein pursuant to the Communications Act, but shall in any event include, to the maximum extent permitted by law, all rights incident or appurtenant to any such FCC License and all of the rights to receive all Proceeds derived from or in connection with the Sale, assignment or transfer of any FCC License; (x) to the extent not already included above, all Fixtures;
claims, demands, judgements, rights, choses in action, equities, credits, bank accounts, investment and securities accounts, cash on hand and in banks or with other financial institutions, lock boxes and other post office boxes, bonds and all other securities of every description, investments, investment property, insurance policies, including the cash surrender value thereof and all proceeds thereof, and all federal, state and local tax refunds and/or abatements to which such Grantor is or may from time to time become entitled, no matter how or when arising, including, but not limited to, any loss carryback tax refunds; (xi) each Cash Collateral Account established for such Grantor and all Goods;
monies, securities and Instruments deposited or required to be deposited in any such Cash Collateral Account; and (xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the aboveProperty identified or described in foregoing CLAUSES (i) through (xii), inclusive, being herein called, collectively, the “Collateral”"SECURITY AGREEMENT COLLATERAL").
(b) Notwithstanding anything herein to the contrary, in no event shall the The security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends extend (i) to all Collateral Property of the kind which is the subject of this Agreement which any Grantor may acquire, own or with respect to which any Grantor may obtain rights, otherwise acquire at any time or from time to time during the term continuation of this Agreement, and (ii) to any and all Proceeds or products thereof.
(c) Notwithstanding the foregoing, the Security Agreement Collateral shall not include any Property in which a Grantor is not permitted, by Applicable Law or by the terms of any Instrument to which such Grantor is a party or by which such Grantor or any of its Property is bound, to grant a security interest or Lien; PROVIDED, HOWEVER, that all Proceeds of any and all Property described in the foregoing provisions of this PARAGRAPH (c) shall in any event constitute Security Agreement Collateral in which the Collateral Agent shall have a security interest and Lien.
(d) The Liens hereunder are granted as security only Each Grantor acknowledges and shall not subject agrees that, in applying the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability law of any Grantor with respect to jurisdiction that at any time enacts all or substantially all of the Collateral or any transaction uniform provisions of revised Article 9 of the Uniform Commercial Code approved in connection therewith.
(e) Notwithstanding anything herein to 1998 by the contraryAmerican Law Institute and the National Conference of Commissioners on Uniform State Laws, the Grantors make no representations or warranties hereunderforegoing collateral description covers, and the covenants hereunder shall not applyis intended to cover, in respect all Property of the Excluded Assetssuch Grantor of every description.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors, a continuing security interest in in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
acquired: (i) each and every Account (and all rights to receive paymentsReceivable, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
Contracts, together with all Contract Rights arising thereunder, (iii) all Inventory, (iv) all Equipment, (v) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks, (vi) all Patents and Copyrights, (vii) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including, but not limited to, Trade Secrets Rights, (viii) all other Goods, General Intangibles, Permits, Chattel Paper, Documents, Instruments, Investment Property (except to the extent pledged under the Pledge Agreement) and other assets (including cash), (ix) the Cash Collateral Account and all monies, securities, Instruments instruments and other investments deposited or required to be deposited in the such Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
other bank, demand, time savings, passbook, certificates of deposit and similar accounts maintained by such Assignor and all monies, securities, instruments and other investments deposited or required to be deposited in any of the foregoing accounts, and (xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, collectively, the “"Collateral”").
(b) . Notwithstanding anything herein to the contrarycontrary contained in this Agreement (including Section 3.6 hereof or certain of the representations and warranties contained herein), no Assignor shall be required to deliver any Instrument hereunder with an outstanding principal amount of $50,000 or less, provided that no more than $100,000 in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach toaggregate of all such $50,000 or less Instruments (including, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default underthis purpose, any General Intangible, lease, license, contract, agreement or other document, Pledged Notes (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified as defined in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements not required to be delivered pursuant to the Pledge Agreement) shall be excluded from the delivery requirements under this Agreement. Notwithstanding anything to the contrary contained in this Agreement, the Collateral shall not include any, and automatically excluded therefrom shall be any, Equipment or Goods which are the subject of a Lien under Section 6.01(a9.01(viii) or 6.01(b(xiv) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent that the Secured Parties have made holders of any such necessary filings with the FRB in connection therewith and the Grantors have provided Lien do not permit the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting retain a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a subordinated security interest therein would impair (but only so long as such Lien continues to exist), provided that the validity security interest in any such Equipment or enforceability Goods shall be reinstated in favor of the Collateral Agent for the benefit of the Secured Creditors at such application under applicable federal law (other than time as the underlying obligations with respect to the extent any such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);Lien shall have been satisfied.
(cb) The security interest of the Collateral Agent under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security Agreement (Scot Inc)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth as described on Annex E hereto or for which notice is required G as updated from time to be provided pursuant time;
(vi) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including but not limited to Section 3.1 belowDomain Names and Trade Secret Rights;
(vii) All all Contracts, together with all Contract Rights arising thereunder;
(viii) all DocumentsEquipment;
(ix) all EquipmentDeposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(x) all FixturesDocuments;
(xi) all GoodsGeneral Intangibles;
(xii) all InstrumentsGoods;
(xiii) all Intellectual PropertyInstruments;
(xiv) all Promissory NotesIntellectual Property;
(xv) all Inventory;
(xvi) all Financial Assets;
(xvii) all Joint Venture Investment Property;
(xviixviii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds)Notes;
(xx) all Permits;
(xxi) all books Security Entitlements and records other Investment Property (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any the extent not already covered by another clause of the foregoingthis Section 1.1(a));
(xxii) with respect to each right to payment or performance included in each of the foregoing, any all Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; andObligations;
(xxiii) all substitutionsFixtures;
(xxiv) all other goods and personal property, replacements accessions, whether tangible or intangible; and
(xxv) all Proceeds and products of of, and all accessions to, substitutions and replacements for, and rents, profits and products of, any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for To secure the prompt and complete payment and performance when due of the Obligations, each Grantor does Debtor hereby assign and transfer unto grants to the Collateral Agent, on behalf of and does hereby pledge and grant to the Collateral Agent, for the ratable benefit of the Secured Parties, a continuing lien on, security interest in and right of set-off against any and all of the right, title and interest in and to any and all property and interests in property of such Grantor inDebtor, to whether now owned or existing or hereafter created, acquired or arising and under wherever located, including all of the following personal property (properties and all rights therein) of such Grantorinterests in properties, or in which or to which such Grantor has any rights, in each case whether now existing owned or hereafter from time to time created, acquired or arising and regardless of where located:(all being collectively referred to herein as the “Collateral”):
(ia) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Accounts;
(iib) all cash and MoneyChattel Paper;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(ivc) all (x) Deposit AccountsCommercial Tort Claims, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper)those Commercial Tort Claims described on Schedule 2(c) hereto;
(vid) all Commercial Tort Claims set forth on Annex E hereto Deposit Accounts, all cash, and other property deposited therein or for which notice is required otherwise credited thereto from time to be provided pursuant to Section 3.1 belowtime and other monies and property in the possession or under the control of the Agent or any Purchaser or any affiliate, representative, agent or correspondent of the Agent or any Purchaser;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viiie) all Documents;
(ixf) all EquipmentGeneral Intangibles;
(xg) all Goods, including without limitation any and all Inventory, any and all Equipment and any and all Fixtures;
(xi) all Goods;
(xiih) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvii) all Investment Property;
(xviij) all Letter-of-Credit Rights Rights;
(k) all Supporting Obligations;
(l) any and all other personal property and interests in property whether or not subject to the respective letter of credit is evidenced by a writing)UCC;
(xviiim) all General Intangibles;
(xix) all Payment Intangibles (including corporate any and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible in whatever form or electronicmedium, which that at any time evidence or contain any information relating to any of the foregoing)foregoing properties or interests in properties or are otherwise necessary or helpful in the collection thereof or realization thereon;
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiiin) all substitutionsAccessions and additions to, and substitutions and replacements accessionsof, Proceeds and products of any and all of the foregoing; and
(o) all Proceeds and products of the foregoing, including collateral security and guarantees with respect all insurance pertaining to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein proceeds thereof. Anything in this Agreement to the contrarycontrary notwithstanding, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) include any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained)Excluded Property; provided, however, that such security interest if and when any property shall attach immediately at such time as the condition causing such abandonmentcease to be Excluded Property, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of shall be deemed at all times from and after the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement date hereof to constitute Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Applicable Obligations, each Grantor Assignor does hereby sell, assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors as their interests may appear, a continuing security interest in in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Receivable;
(ii) all cash and MoneyContracts, together with all Contract Rights arising thereunder;
(iii) all Inventory;
(iv) all Equipment;
(v) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks;
(vi) the Cash Collateral Account established for such Assignor and all moniesmoneys, securities and instruments deposited or required to be deposited in such Cash Collateral Account;
(vii) all Patents and Copyrights and all reissues, renewals or extensions thereof;
(viii) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including, but not limited to, Trade Secrets Rights;
(ix) all insurance policies;
(x) all other Goods, General Intangibles, Chattel Paper (including without limitation all Tangible Chattel Paper and all Electronic Chattel Paper), Documents and Instruments;
(xi) all Permits;
(xii) all cash;
(xiii) all Commercial Tort Claims;
(xiv) all Deposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all moneys, securities, Instruments and other investments deposited or required to be deposited in any of the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notesforegoing;
(xv) all Inventory;
(xvi) all Investment Property;
(xviixvi) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xvii) all Software and all Software licensing rights, all writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and licenses, and all recorded data of any kind or nature, regardless of the medium of recording;
(xviii) all General Intangibles;Supporting Obligations; and
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, including this clause (xix), collectively, the “"Collateral”"); provided that the Collateral that secures the New Senior Notes Obligations and the Refinancing Senior Notes Obligations of a Specified Assignor shall be limited to Collateral owned by such Specified Assignor consisting of any shares of stock, indebtedness or other obligations of a Subsidiary or of any Principal Property of the Borrower or any Restricted Subsidiary (the "Designated Collateral"), all of which Collateral shall also ratably secure all other Applicable Obligations of such Specified Assignor, and the Collateral Proceeds with respect to any item of Collateral owned by a Specified Assignor that are to be applied to the New Senior Notes Obligations or to the Refinancing Senior Notes Obligations shall be limited to Collateral Proceeds from the sale, other disposition of or other realization upon, and other moneys received in respect of, the Designated Collateral of such Specified Assignor, with such Collateral Proceeds to also be applied ratably to all other Applicable Obligations of such Specified Assignor.
(b) Notwithstanding anything contained herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “"Collateral” (and the component terms thereof) " shall not includeinclude any Copyright, (i) any property▇▇▇▇, interest Patent, Trade Secret, computer program or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant Software to the extent such property is subject to a license or agreement the terms of which prohibit an assignment of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation granting of a security interest in, such Assignor's rights thereunder (other than to the extent that any or such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the Assignor's grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge this Agreement or the corresponding provision of would give any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock party thereto (other than treasury stocksuch Assignor) the right to terminate its obligations thereunder; provided that would constitute Collateral absent this proviso at the time foregoing limitation shall not affect, limit, restrict or impair the grant by an Assignor of delivery of any financial statements required to be delivered the security interest pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which in any Grantor may acquire, or with respect to which any Grantor may obtain rights, at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent account or any money or other Secured Party to, amounts due or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.become due
Appears in 1 contract
Sources: Security Agreement (Rj Reynolds Tobacco Holdings Inc)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors, a continuing security interest in of first priority in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
acquired: (i) each and every Account (and all rights to receive paymentsReceivable, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
Contracts, together with all Contract Rights arising thereunder (other than Contracts which by their terms cannot be pledged (although the right to receive payments of money due or to become due thereunder shall not be excluded from the security interest created hereunder)), (iii) all Inventory, (iv) all Equipment, (v) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks, (vi) all Patents and Copyrights, (vii) all computer programs of such Assignor and all intellectual property rights therein (other than such programs and rights which by their terms cannot be pledged) and all other proprietary information of such Assignor, including, but not limited to, trade secrets, (viii) all other Goods, General Intangibles, Chattel Paper, Documents and Instruments, (ix) the Cash Collateral Account and all monies, securities, Instruments securities and other investments instruments deposited or required to be deposited in the such Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, collectively, the “"Collateral”"). Notwithstanding anything to the contrary contained in the immediately preceding sentence, the term Collateral shall not include motor vehicles.
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term continuation of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security Agreement (Communications Instruments Inc)
Grant of Security Interests. Each Grantor hereby grants to the Administrative Agent, for the ratable benefit of the Secured Parties, a security interest in all of the following property now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest and wherever located (a) As collectively, the “Collateral”), as collateral security for the prompt and complete payment and performance when due of (whether at the Obligationsstated maturity, each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit by acceleration or otherwise) of the Secured Parties, a continuing security interest in all of the right, title and interest of such Grantor in, to and under all of the following personal property Obligations (and all rights therein) of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
(i) each and every Account (and hereafter): all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Accounts; all Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims (including those set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All ContractsSchedule 8); all Deposit Accounts, together with all Contract Rights arising thereunder;
(viii) Securities Accounts and all Commodities Accounts; all Documents;
(ix) ; all Equipment;
(x) ; all Fixtures;
(xi) ; all General Intangibles; all Goods;
(xii) ; all Instruments;
(xiii) ; all Intellectual Property;
(xiv) , and all Promissory Notes;
(xv) Intellectual Property Licenses, and all claims for any infringement or other impairment thereof; all Inventory;
(xvi) ; all Investment Property;
Property (xvii) including all Pledged Collateral); all Letter-of-Credit Rights Rights; Letters of Credit (whether or not as defined in the respective letter of credit is evidenced by a writingUCC);
, Promissory Notes (xviii) as defined in the UCC), and Drafts (as defined in the UCC); all General Intangibles;
(xix) Money; all Payment Intangibles (including corporate and other tax refunds);
(xx) Receivables; all Permits;
(xxi) all books Books and records (including pertaining to the Collateral; all booksother property not otherwise described above; and to the extent not otherwise included, databasesall Proceeds, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds Obligations and products of any and all of the foregoing, including foregoing and all collateral security and guarantees given by an Person with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds foregoing. Notwithstanding any of the foregoing (all of the aboveother provisions set forth in this Section 3, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) this Agreement shall not include, (i) any property, interest or other rights for so long as the constitute a grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than in any property to the extent that such grant of a security interest is prohibited by any Requirement of Law of a Governmental Authority or constitutes a breach or default under or results in the termination of or requires any consent not obtained under, any contract, license, agreement, instrument or other document evidencing or giving rise to such property, except (i) to the extent that the terms in such contract, license, instrument or other document providing for such prohibition, breach, default or termination, or requiring such consent are not permitted under the terms and conditions of the Credit Agreement, (ii) to the extent that such Requirement of Law or the term specified in clause (A) such contract, license, agreement, instrument or (B) above other document providing for such prohibition, breach, default or termination or requiring such consent is rendered ineffective pursuant to under Section 9-406, 9 9-407, 9-408 or 9-409 of the New York UCC (or any successor provision or provisions) of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy lawsthe Bankruptcy Code) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonmentRequirement of Law is not effective or applicable, invalidationor such prohibition, unenforceability breach breach, default or termination shall is no longer be effective applicable or is waived, and to the extent severable, shall attach immediately to any portion of such property or other rights the Collateral that does not result in any of the consequences specified in clause (A)such consequences; and provided, (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided howeverfurther, that each applicable Grantor no United States intent-to-use trademark or service ▇▇▇▇ application shall provide to be included in the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the periodperiod in which, if any, in which the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark or service ▇▇▇▇ application under applicable federal Federal law (other than to the extent such rights can be perfected by the filing including where a statement of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereofuse has not been filed with, collectivelyand accepted by, the “Excluded Assets”United States Patent and Trademark Office);
(c) The . After such period, each Grantor acknowledges that such interest in such trademark or service ▇▇▇▇ application shall be subject to a security interest in favor of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or and shall be included in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewithCollateral.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Alkami Technology, Inc.)
Grant of Security Interests. On the Issue Date, the Company and the Guarantors shall cause the Notes Collateral Agent (a) As security for the prompt and complete payment and performance when due of the Obligations, each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesNotes Collateral Agent, a continuing security interest the Trustee and the Holders) to have valid and perfected Liens on the Collateral that are second in all of priority only to First Lien Obligations on the rightCollateral, title subject to Permitted Liens. In addition, the Company and interest of such Grantor in, to and under all of the following personal property (and all rights therein) of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedGuarantors shall:
(ia) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in enter into each of the foregoing, any Supporting Obligation that supports such payment or performance Notes Collateral Documents and any Lien that secures amendments or supplements to such right Notes Collateral Documents necessary in order to payment or performance or secures any such Supporting Obligation; and
cause the Notes Collateral Agent (xxiii) all substitutions, replacements accessions, Proceeds and products of any and all for the benefit of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the aboveNotes Collateral Agent, the “Collateral”).Trustee and the Holders) to have valid and perfected Liens on the Collateral that are second in priority only to First Lien Obligations, subject to Permitted Liens;
(b) Notwithstanding anything herein to the contrarydo, in no event shall the security interests execute, acknowledge, deliver, record, file and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreementregister, as applicable; , any and all acts, deeds, conveyances, security agreements, assignments, financing statements and continuations thereof, termination statements, notices of assignment, transfers, certificates, assurances and other instruments as may be required so that, on the Issue Date, the Notes Collateral Agent (iii) any treasury stock for the benefit of a Grantor or other Margin Stockthe Notes Collateral Agent, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith Trustee and the Grantors Holders) shall have provided valid and perfected Liens on the Collateral Agent an executed Form FR U-1; provided howeverthat are second in priority only to First Lien Obligations, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”)Permitted Liens;
(c) The security interest of take such further action and execute and deliver such other documents specified in the Indenture Documents or as otherwise may be reasonably requested by the Trustee or Notes Collateral Agent under this Agreement extends to all Collateral which any Grantor may acquire, or with respect give effect to which any Grantor may obtain rights, at any time during the term of this Agreement.foregoing; and
(d) The Liens hereunder are granted as security only deliver to the Trustee and shall not subject the Administrative Notes Collateral Agent or an Opinion of Counsel that (i) such Notes Collateral Documents and any other Secured Party todocuments required to be delivered have been duly authorized, or transfer or in any way affect or modifyexecuted and delivered by the Company and the Guarantors and constitute legal, any obligation or liability of any Grantor with respect to any valid, binding and enforceable obligations of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein Company and the Guarantors, subject to the contrary, the Grantors make no representations or warranties hereundercustomary qualifications and limitations, and (ii) the covenants hereunder shall not applyNotes Collateral Documents and the other documents entered into pursuant to this Section 10.06 create valid and perfected Liens on the Collateral covered thereby, in respect of the Excluded Assetssubject to Permitted Liens and customary qualifications and limitations.
Appears in 1 contract
Sources: Senior Secured Indenture (United Rentals Highway Technologies Gulf, LLC)
Grant of Security Interests. (a) As collateral security for the prompt and complete payment and performance Borrowers’ obligations to pay the Lender Debt when due of and payable and their indemnification obligations to the ObligationsLender Group hereunder, each Grantor does Loan Party hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant grants to the Collateral Agent, Lender for the benefit of the Secured Parties, Lender Group a continuing first-priority Lien (subject only to Permitted Liens) on and security interest in and right of set-off against all of the rightrights, title and interest of such Grantor in, Loan Party in and to and under all of the following personal property (and all rights therein) assets of such GrantorLoan Party, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising arising, and regardless wherever located (all of where located:the following, together with all other collateral provided by the Loan Parties under the other Loan Documents as security for the Lender Debt, the “Collateral”):
(i1) all Receivables, whether now owned or hereafter acquired;
(2) to the maximum extent permitted by law, all deposit accounts of such Loan Party, including, without limitation, each Lockbox and every Account each Lockbox Account, and amounts held therein;
(3) all money and cash, including all Collections but excluding any money and cash deposited in Foreign Deposit Accounts;
(4) all Records relating to items (1) through (3) above;
(5) all general intangibles (excluding general intangibles consisting of patents, trademarks, patent and trademark applications, copyrights, trade names and other intellectual property but including proceeds and products of such general intangibles and any royalties and Receivables arising from the licensing of any such intellectual property to Qiagen pursuant to the license agreement entered into with Qiagen in 2005 (as such license is amended, restated, replaced or otherwise modified)), including franchise rights, licenses and Federal, state and local tax refund claims of all kinds;
(6) all goods, including without limitation all machinery, equipment, fixtures and all other tangible personal property, as well as all of such types of property leased and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper interests with respect thereto under such leases (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paperoptions to purchase);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether present and future additions and accessions thereto, replacements therefor, component and auxiliary parts and supplies used or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer liststo be used in connection therewith, and records, whether tangible or electronic, which contain any information relating to all substitutes for any of the foregoing), and all manuals, drawings, instructions, warranties and rights with respect thereto;
(xxii7) with respect all inventory and documents of title relating thereto;
(8) all Contracts, to each right to payment or performance the extent not included in the definition of Receivables;
(9) all instruments, investment property, securities, security entitlements and securities accounts;
(10) all Equity Interests held by each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right Loan Party;
(11) all Records relating to payment or performance or secures any such Supporting Obligationitems (5) through (10) above; and
(xxiii12) all substitutions, replacements accessions, Proceeds and products proceeds of any and all kind or nature of the foregoing, including collateral . This Agreement will be deemed to be a security and guarantees with respect to any agreement within the meaning of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of UCC. Notwithstanding the foregoing (all of the aboveforegoing, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that Collateral does not result in any of include the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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 AgreementLife Technologies Commercial Tort Claim.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Revolving Loan and Security Agreement (Enzo Biochem Inc)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral AgentLender, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesLender, a continuing security interest in of first priority in, and lien on, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
acquired: (i) each and every Account (and all rights to receive paymentsReceivable, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
Contracts, together with all Contract Rights arising thereunder (other than Contracts which by their terms cannot be pledged), (iii) all Inventory, (iv) all Equipment, (v) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks, (vi) all Patents and Copyrights, (vii) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including, but not limited to, trade secrets, (viii) all other Goods, General Intangibles, Chattel Paper, Documents and Instruments, (ix) the Cash Collateral Account and all monies, securities, Instruments securities and other investments instruments deposited or required to be deposited in the such Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts Account and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, collectively, the “"Collateral”").
(b) . Notwithstanding anything herein to the contraryforegoing provisions of Section 1.1, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such General Intangibles, not including any Receivables, included in the term specified in clause (A) "Collateral" are not assignable or (B) above is rendered ineffective pursuant to Section 9-406, 9 407, 9-408 capable of being encumbered as a matter of law or 9-409 under the terms of the UCC (license, lease or any successor provision or provisions) of any relevant jurisdiction or any other then-agreement applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require thereto without the consent of a Governmental Authority to permit the grant of a security interest therein (licensor or lessor thereof or other applicable party thereto and such consent has not been obtained), such General Intangibles shall not be included in the "Collateral"; provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to upon obtaining any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafterconsents, such Margin Stock General Intangibles shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and included in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);"Collateral".
(cb) The security interest of the Collateral Agent Lender under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term continuation of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Credit Agreement (Agency Com LTD)
Grant of Security Interests. (a) As security for In order to secure the prompt and complete payment and performance when due of the ObligationsSecured Obligations in accordance with the terms thereof, each Grantor does Debtor hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant grants to the Collateral Agent, for the benefit of Agent and the Secured PartiesLenders, a continuing security interest in and to all of the right, title and interest of such Grantor in, to and under all of Debtor in the following personal property (and all rights therein) of such Grantorproperty, or in which or to which such Grantor has any rights, in each case whether now owned or existing or hereafter from time to time acquired or arising and regardless of where located:located (all being collectively referred to as the "Collateral"):
(iA) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Accounts;
(iiB) all cash and MoneyInventory;
(iiiC) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited theretoGeneral Intangibles;
(vD) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ixE) all Instruments;
(F) Equipment;
(xG) all Fixtures;
(xiH) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xviiI) Any Depository Account and all Letter-of-Credit Rights (whether other deposit accounts of Debtor maintained with any bank or not the respective letter of credit is evidenced by a writing)financial institution;
(xviiiJ) all General IntangiblesAll cash deposited therein from time to time and other monies and property of Debtor in the possession or under the control of Agent or any Lender;
(xixK) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all All books, databases, customer lists, and records, whether tangible ledger cards, files, correspondence, computer programs, tapes, disks and related data processing software that at any time evidence or electronic, which contain any information relating to any of the foregoing);
property described in subparts (xxiiA) with respect to each right to payment - (J) above or performance included are otherwise necessary or helpful in each of the foregoing, any Supporting Obligation that supports such payment collection thereof or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligationrealization thereon; and
(xxiiiL) Proceeds of all substitutions, replacements accessions, Proceeds and products or any of any and all of the property described in subparts (A) - (K) above. Notwithstanding the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) Collateral shall not include, and Debtor shall not be deemed to have granted a security interest in, any of Debtor's rights or interests in: (i) any propertylicenses, interest contracts or other rights for so long as agreements to which Debtor is a party, existing on the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms ofdate hereof, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified a grant would, under the express terms of such licenses, contracts or agreements, result in clause (A) or (B) above is rendered ineffective pursuant to Section 9-406, 9 407, 9-408 or 9-409 a breach of the UCC (terms thereof, or any successor provision or provisions) of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of constitute a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) abovedefault thereunder; (ii) the Pledge Agreement Collateralany capital leases and purchase money agreements to which Debtor is a party, including or any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant its rights or interests thereunder, to the proviso to Section 3.1 extent that such a grant would, under the express terms of such capital leases and/or purchase money agreements, result in a breach of the Pledge Agreement terms thereof, or the corresponding provision of any other Pledge Agreement, as applicableconstitute a default thereunder; or (iii) any treasury stock licenses, contracts or agreements to which Debtor is a party, or any of a Grantor its rights or other Margin Stockinterests thereunder, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent that such a grant would be prohibited by applicable law. Notwithstanding the Secured Parties foregoing, so long as no Event of Default has occurred and is continuing, Debtor shall have made such necessary filings with the FRB in connection therewith exclusive, non-transferable right and license to use the Intellectual Property and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required exclusive right to be paid over grant to certain employee benefit plans other Persons licenses and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor may acquire, or sublicenses with respect to which any Grantor may obtain rights, at any time during the term of this AgreementIntellectual Property.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security Agreement (Cherokee International Finance Inc)
Grant of Security Interests. (a) As security for In order to secure the prompt full and complete punctual payment and performance when due of the ObligationsObligations in accordance with the terms thereof, each Grantor does Borrower hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant grants to the Collateral Agent, for the benefit of the Secured Parties, Lender a continuing security interest in and to all of the Borrower's right, title and interest of such Grantor in, in and to all tangible and under all of the following intangible personal property (and all rights therein) fixtures of such GrantorBorrower, or in which or to which such Grantor has any rightswherever located and, in each case whether now owned or existing or hereafter from time to time acquired or arising and regardless of where located, of every kind and description (collectively, the "Collateral"), including, without limitation, the following:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))the Receivables;
(ii) all cash and Money;the Related Security with respect to the Receivables,
(iii) the Cash Collateral Account and all moniesCollections, securities, Instruments including all cash collections and other investments deposited or required to be deposited in cash proceeds of the Cash Collateral AccountReceivables; \\DC - 066299/000158000182 - 9848070 v13and
(iv) all Equipment (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences than any Equipment which is currently subject to a financing arrangement which would be in default as a result of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited theretothe granting of the Lien hereunder on such Equipment);
(v) all Chattel Paper of Borrower's right, title and interest in and to all inventory of any kind (including, without limitation, all Tangible Chattel Paper types of goods, property and other assets that are held by Borrower for sale, lease or other disposition in the ordinary course of Borrower's business or to be furnished under a contract for services, whether such goods, property and other assets are raw, in process and finished, and materials and supplies used or consumed in the business of Borrower, and goods returned to or repossessed by Borrower and goods in which Borrower has an interest in mass or a joint or other interest or right of any kind), and all Electronic Chattel Paper)accession thereto and products thereof;
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required of Borrower's right, title and interest in and to be provided all present and future accounts (other than the cash security account maintained by Borrower pursuant to Section 3.1 belowthat certain Cash Collateral Agreement, dated as of December 20, 2001 by and between Borrower and Citicorp USA, Inc., and any and all funds or sums now or hereafter deposited in such account, all replacements and substitutions thereof, all instruments and documents in connection therewith, all powers, options, rights and privileges pertaining thereto, and all proceeds of the foregoing), contract rights, chattel paper, documents and instruments (any and all such accounts, contract rights, chattel paper, instruments, documents and rights and obligations being hereinafter referred to as the "Accounts");
(viia) All Contractsexcept for the Harlem Membership Interest, together all of Borrower's right, title and interest in and to all general intangibles; (b) all rights, interest, choses in action, causes of action, claims and all other intangible property of every kind and nature, in each instance whether now owned or hereafter acquired by Borrower, including, without limitation, all corporate and other business records, all loans, royalties, all Seller Subordinated Notes (as defined in the Purchase and Contribution Agreement, and all other forms of obligations receivable whatsoever (other than Receivables); (c) all trademarks, patents, trade secrets, licenses, copyrights, goodwill, inventions, designs, registrations, permits, franchises and licenses; (d) all computer programs, software, printouts and correspondence, and advertising materials; (e) all customer and supplier contracts, sale orders, rights under license and franchise agreements, and other contracts and contract rights; (f) all interests in partnerships and joint ventures (including, without limitation, certain rights with respect to the ERC LLC Membership Interest as set forth in the ERC LLC Pledge Agreement), including all Contract Rights moneys due from time to time in respect thereof; (g) all federal, state and local tax refunds and federal, state and local tax refund claims; (h) all right, title and interest under leases, subleases, licenses and concessions and other agreements relating to personal property, including all moneys due from time to time in respect thereof; (i) all payments due or made to Borrower in connection with any requisition, confiscation, condemnation, seizure or forfeiture of any property by any person or governmental authority; (j) all collection accounts and deposit accounts (general or special) with any bank or other financial institution; (k) all credits with and other claims against third parties (including carriers and shippers) other than accounts; (l) all rights to indemnification; (m) all reversionary interests in pension and profit sharing plans and reversionary, beneficial and residual interests in trusts; (n) all proceeds of insurance of which the Borrower is the beneficiary; (o) all letters of credit, guaranties, liens, security interests and other security held by or granted to the Borrower; and (p) all other intangible property, whether or not similar to the foregoing, in each instance, however and wherever arising thereunder;(hereinafter collectively referred to as "General Intangibles"); and
(viii) all Documents;
(ix) cash and non-cash Proceeds of any of the foregoing and, to the extent not otherwise included, all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights payments under insurance (whether or not Lender is the respective letter of credit is evidenced by a writingloss payee thereof);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and recordsany indemnity, whether tangible warranty or electronicguaranty, which contain any information relating payable by reason of loss or damage to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees otherwise with respect to any of the foregoing and all cashCollateral); in each case, Moneyhowsoever Borrower's interest therein may arise or appear (whether by ownership, insurance proceedssecurity interest, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”claim or otherwise).
(b) Notwithstanding anything herein to the contrarycontrary contained in this Section 14.1 or elsewhere in this Agreement, "Collateral" expressly excludes Excluded Collateral. To the extent the provisions of this Section 14.1 or other provisions of this Agreement create a security interest in any property that subsequently falls within the definition of Excluded Collateral, Lender hereby agrees that such property shall be automatically released at that time from any such security interest and that Lender shall from that time have no event shall the further security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of right in or to such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);property.
(c) The security interest of Notwithstanding anything to the Collateral Agent under contrary contained in this Agreement extends to all Collateral which any Grantor may acquire, Section 14.1 or with respect to which any Grantor may obtain rights, at any time during the term of elsewhere in this Agreement.
, "Collateral" expressly excludes (di) The Liens hereunder are granted as security only until Borrower executes and shall not subject delivers to Lender the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect Alliance Pledge Agreement pursuant to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrarySection 10.29(iii), the Grantors make no representations or warranties hereunderAlliance Membership Interest (and automatically upon such execution and delivery, the Alliance Membership Interest shall constitute Collateral), and (ii) until Borrower executes and delivers to Lender the covenants hereunder applicable Collateral Assignment pursuant to Section 10.29(i) and/or Section 10.29(ii), the applicable Second Closing Date Collateral (and automatically upon such execution and delivery, the applicable Second Closing Date Collateral shall not apply, in respect of the Excluded Assetsconstitute Collateral).
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor does hereby assign and transfer unto the Collateral Agent, and Assignor does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible)) to the extent related to any Account);
(ii) all cash and MoneyMoney arising from an Account;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts commodity accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;; in each case to the extent (i) holding Designated Cash, (ii) subject to a Cash Management Control Agreement or (iii) otherwise subject to a control agreement in form and substance reasonably satisfactory to the Administrative Agent giving the Collateral Agent “control” (within the meaning of the UCC).
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper)Promissory Notes relating to any Account;
(vi) all Commercial Tort Claims Equipment set forth on Annex E hereto as such Annex may be amended, restated, modified or for which notice is required otherwise supplemented from time to be provided pursuant to Section 3.1 belowtime;
(vii) All Contracts, together with all Contract Rights arising thereunderInventory;
(viii) all DocumentsPayment Intangibles relating to any Account;
(ix) to the extent relating to, evidencing or governing any of the items referred to in preceding clauses (i) through (viii), all EquipmentPermits, Documents, General Intangibles (excluding all Intellectual Property Rights and contracts related thereto), Chattel Paper, Instruments, Letter-of-Credit Rights, related letters of credit, guarantees and collateral liens, documents of title, customs receipts, insurance, shipping and other documents and other materials related to the foregoing (including to the purchase or import of any Inventory);
(x) to the extent relating to, evidencing or governing any of the items referred to in the preceding clauses (i) through (ix), all FixturesSupporting Obligations;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records relating to the items referred to in the preceding clauses (i) through (x) (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoingitems referred to in the preceding clauses (i) through (x);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation); and
(xxiiixii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the aboveabove described in the preceding clauses (i) through (xii), the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests interest and Liens lien granted under Section 1.1(a) hereof attach to, and in no event shall the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy lawsthe Bankruptcy Code) or principles of equity) or ), (C) require the consent of a Governmental Authority or any other Person (other than consent of the Company or any of its Subsidiaries) to permit the grant of a security interest therein (and such consent has not been obtained)) or (D) materially adverse tax consequences as reasonably determined by the Company; provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B), (C) or (CD) above; (ii) any property, interest or other rights with respect to which, in the Pledge Agreement Collateralreasonable determination of the Administrative Agent, including any asset expressed in writing, the cost or other consequences of granting a Grantor excluded from security interest in favor of the Pledge Agreement Collateral pursuant Secured Creditors is excessive in relation to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicablevalue afforded thereby; (iii) any treasury stock of a Grantor or other Margin StockNon-Eligible Motor Vehicles, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles airplanes and other assets subject to certificates of title title; (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC)iv) Equity Interests; and (v) Securitization Related Assets; (vi) any United States “intent-to-use” Trademark application prior to all interests in Real Property; (vii) Gigafactory Assets, (viii) Accounts that are identifiable proceeds of the filing sale or other disposition of a “Statement of Use” or “Amendment to Allege Use” with respect theretoproperty that is not Collateral, to (ix) intercompany Accounts outstanding on the extent, if any, that, Effective Date and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCCx) Intellectual Property Rights (the assets described in preceding clauses (i) through (vix) hereof, collectively, the “Excluded Assets”);.
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) . Notwithstanding anything herein to the contrary, the Grantors Assignors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of the Secured Obligations, each Grantor does hereby pledge, sell, assign and transfer unto the Collateral Administrative Agent, and does hereby pledge and grant to the Collateral Administrative Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor in, to and under all of the following personal property (and all rights therein) of such each Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time arising or acquired or arising and regardless of where located:wherever located (collectively, the “Collateral”):
(i) all Accounts, including, without limitation, each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Receivable;
(ii) all cash and MoneyGoods;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13Inventory;
(iv) all Equipment;
(v) all Documents;
(vi) all Instruments;
(vii) all Chattel Paper;
(viii) all Money;
(ix) all Deposit Accounts, including, but not limited to, the Collateral Concentration Account and all Controlled Deposit Accounts, together with all monies, securities and instruments at any time deposited in any such Deposit Account or otherwise held for the credit thereof;
(x) Deposit all Securities Accounts, collection accounts, disbursement accounts and lock boxes and together with all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held Financial Assets credited therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited theretofrom time to time, and all cashFinancial Assets, Moneymonies, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets cash and other property held therein or credited thereto;
(vxi) all Chattel Paper Investment Property;
(xii) all Fixtures;
(xiii) all As-Extracted Collateral, including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper)Minerals;
(vixiv) all General Intangibles, including, but not limited to, all Contract Rights;
(xv) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 belowClaims;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiiixvi) all Intellectual Property;
(xivxvii) all letters of credit and Letter-of-Credit Rights;
(xviii) all Payment Intangibles;
(xix) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all PermitsSupporting Obligations;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing)insurance claims;
(xxii) with respect to each right to payment or performance included in each of the foregoingall Commercial Tort Claims, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; andincluding without limitation, those set forth on Schedule 2 attached hereto;
(xxiii) all substitutionsother items, replacements kinds and types of personal property, tangible or intangible, of whatever nature, and regardless of whether the creation or perfection or effect of perfection or non-perfection of a security interest therein is governed by the UCC of any particular jurisdiction or by any other applicable treaty, convention, statute, law or regulation of any applicable jurisdiction;
(xxiv) all books and records evidencing or relating to the foregoing;
(xxv) all additions, modifications, alterations, improvements, upgrades, accessions, components, parts, appurtenances, substitutions and/or replacements of, to or for any of the foregoing; and
(xxvi) all Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the Obligations and all Post-Petition Interest and Expense Claims (collectively, the "Secured Obligations"), each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant assigns to the Collateral Agent, Secured Party for the benefit of the Beneficiaries, and grants Secured PartiesParty for the benefit of the Beneficiaries security interests in, a continuing security interest in all of the such Grantor's right, title and interest of such Grantor in, in and to and under all of the following personal property (and all rights therein) types or items of such Grantor, or in which or to which such Grantor has any rightsproperty, in each case whether now or hereafter existing or owned by such Grantor or in which such Grantor now owns or hereafter from time to time acquired or arising acquires an interest and regardless of where located:wherever the same may be located (collectively, the "Collateral"):
(i) each all Inventory, including specifically all raw materials, work-in-process, finished goods, supplies, materials, spare parts, Goods held for sale or on lease or for lease or furnished or to be furnished under contracts of service, merchandise inventory, rental inventory, and every Account (returned or repossessed Goods and all rights to receive paymentsenforce return or repossession by reclamation, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document stoppage in transit or General Intangible));otherwise,
(ii) all cash Equipment, including specifically all manufacturing, printing, distribution, delivery, retailing, vending, data processing, communications, office and Money;other equipment in all of its forms, all vehicles, all tools, dies, and molds, all Fixtures, all other Goods used or bought for use primarily in a business and all other Goods except Inventory,
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13Accounts,
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;Chattel Paper,
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);Documents,
(vi) all Commercial Tort Instruments and all other Claims set forth on Annex E hereto that are in any respect evidenced or for which notice is required to be provided pursuant to Section 3.1 below;represented by any writing, including specifically the Intercompany Notes described in Schedule 3.1(b), all other Intercompany Notes and all other writings evidencing or representing a Claim against the Borrower, Holdings or any Borrower Subsidiary or any other Person,
(vii) All all Securities, whether constituting Certificated Securities or Uncertificated Securities, all Financial Assets, all Security Entitlements, all Securities Accounts, all Commodity Contracts, together with all Contract Rights arising thereunder;Commodity Accounts, and all other Investment Property, including specifically the Security Certificates described in Schedule 3.1(b) and all other Equity Interests and all Permitted Investments,
(viii) all Documents;money, cash and cash equivalents, including specifically all deposit accounts and all certificates of deposit,
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of specifically (a) the foregoing and all cashproperty described on Schedule 3.1(c), Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests all registered and Liens granted under Section 1.1(a) hereof attach to, unregistered trademarks and the term “Collateral” (servicemarks and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (all trademark and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor may acquire, or with respect service ▇▇▇▇ license agreements to which any Grantor may obtain rightsis a party (whether as licensor or licensee) and all Claims (including infringement claims) relating thereto, at (c) all patents and patent applications and all patent license agreements to which any time during the term of this Agreement.
Grantor is a party (whether as licensor or licensee) and all Claims (including infringement claims) relating thereto, (d) The Liens hereunder are granted as security only all registered and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of unregistered copyrights and all copyright license agreements to which any Grantor with respect to any of the Collateral is a party (whether as licensor or any transaction in connection therewith.
licensee) and Claims (eincluding infringement claims) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.relating thereto,
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of the Obligations, Tower Sub and each Grantor Assignor does hereby sell, assign and transfer unto the Collateral AgentSecured Party (for itself and on behalf of the other Beneficiaries), and does hereby pledge and grant to the Collateral Agent, Secured Party (for the benefit itself and on behalf of the Secured Parties, other Beneficiaries) a continuing security interest in in, all of the right, title and interest of Tower Sub and such Grantor Assignor in, to and under all the assets described in items (i) - (v) below that constitute part of the following personal property (and all rights therein) of such GrantorTower Assets acquired by Tower Sub or any other Assignor pursuant to the Merger Agreement or constructed or acquired by Tower Sub or any other Assignor pursuant to the Master Site Commitment Agreement, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:(collectively, the "Collateral"):
(i) all Contracts (other than those Contracts in respect of which the grant of a security interest by Tower Sub or an Assignor in favor of the Secured Party would result in a default by the Assignor thereunder; provided, however, that Tower Sub and each Assignor shall use commercially reasonable efforts to obtain the consent of the parties to the Contracts referred to in this Section 2.1(i) to the Lien in favor of the Secured Party contemplated and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Papergranted by this Agreement), Instrument, Document or General Intangible));
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;,
(viii) all Documents;
(ixii) all Equipment;,
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xxiii) all Permits;,
(xxiiv) all books other Goods, General Intangibles, Chattel Paper, Documents and records (including all booksInstruments, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiiiv) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent Secured Party under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which Tower Sub or any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term continuation of this Agreement.
(d) The Liens hereunder are granted as security only Agreement and shall not subject the Administrative Agent any transfer, purchase, conveyance or assignment by Tower Sub or any other Assignor of the Tower Assets which constitute the Collateral shall be subject to the lien and security interest of Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewithprovided for herein.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security and Subordination Agreement (Spectrasite Holdings Inc)
Grant of Security Interests. (a) As security for To secure the prompt and complete payment and performance when due of the Guarantied Obligations, each Grantor does hereby assign and transfer unto the Collateral grants to Agent, and does hereby pledge and grant to the Collateral Agenta lien on, for the benefit of the Secured Parties, a continuing security interest in and right of set-off against any and all of the right, title and interest of such Grantor in, in and to and under all of the following personal property (properties and all rights therein) interests in properties of such each Grantor, or in which or to which such Grantor has any rights, in each case whether now existing owned or hereafter from time to time created, acquired or arising and regardless of where located:(all being collectively referred to herein as the "Collateral"):
(i) each and every Account (all Accounts and all rights Goods whose sale, lease or other disposition by Borrower has given rise to receive paymentsAccounts and have been returned to, indebtedness and other obligations (whether constituting an Accountor repossessed or stopped in transit by, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Borrower;
(ii) all cash Chattel Paper, Instruments, Documents and MoneyGeneral Intangibles (including all patents, patent applications, trademarks, trademark applications, trade names, trade secrets, goodwill, copyrights, copyright applications, registrations, licenses, software, franchises, customer lists, tax refund claims, claims against carriers and shippers, guarantee claims, contracts rights, payment intangibles, security interests, security deposits and rights to indemnification);
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xviiv) all Goods (other than Inventory), including Equipment, vehicles and Fixtures;
(v) all Investment Property;
(xviivi) all Deposit Accounts, bank accounts, deposits and cash;
(vii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing)Rights;
(xviiiviii) all General IntangiblesCommercial Tort Claims listed in Schedule 2;
(xixix) all Payment Intangibles (including corporate and other tax refunds)Supporting Obligations;
(xxx) all Permits;
any other property of any Grantor now or hereafter in the possession, custody or control of any Lender or Agent or any parent, Affiliate or Subsidiary of Agent or any Lender or any participant with any Lender in the Loans, for any purpose (xxi) all books and records (including all bookswhether for safekeeping, databasesdeposit, customer listscollection, and recordscustody, whether tangible pledge, transmission or electronic, which contain any information relating to any of the foregoingotherwise);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiiixi) all substitutionsadditions and accessions to, replacements accessionssubstitutions for, and replacements, products and Proceeds and products of any the foregoing property, including proceeds of all insurance policies insuring the foregoing property, and all of the foregoing, including collateral security Borrower's books and guarantees with respect records relating to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”)to Borrower's business.
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Administrative Agent, and does hereby pledge and grant to the Collateral Agent, Administrative Agent for the benefit of the Secured PartiesCreditors, a continuing security interest in in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
acquired: (i) each and every Account (and all rights to receive paymentsReceivable, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
Contracts, together with all Contract Rights arising thereunder, (iii) all Inventory, (iv) all Equipment, (v) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks, (vi) all Patents and Copyrights, (vii) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including, but not limited to, Trade Secret Rights, (viii) all other Goods, General Intangibles, Permits, Chattel Paper, Documents and Instruments, (ix) the Cash Collateral Account and all monies, securities, Instruments instruments and other investments deposited or required to be deposited in the such Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
revenues, receipts, income, accounts, and other Receivables derived or to be derived from the ownership or operation of any Hotel Property and related facilities located thereon, including, without limitation of the generality of the foregoing, all room revenues and room charges and charges for hotel services (including advance deposits therefor) and other revenues and income derived or to be derived from the sale or rental of hotel rooms and meeting rooms, the provision of hotel services, the sale of food, beverages and merchandise, the rental of shops, leasing of commercial or residential spaces, the granting of concessions (including taxi concessions and concessions for the installation of coin-operated machines to the extent of such Assignor's interest therein) within or about any Hotel Property and related facilities, the rental or operation of travel desks, the rental or operation of parking facilities and the provision of services to guests of any Hotel Property and related facilities located thereon and any other items of revenue, receipts or other income, (xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) each Assignor with respect to each right to payment or performance included in each any and all of the foregoing, any Supporting Obligation that supports such payment or performance foregoing and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiiixii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of each Assignor's right, title and interest in the above, collectively, the “"Collateral”").
(b) Notwithstanding anything herein any thing to the contrarycontrary contained in clause (a) above, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) Collateral shall not includeinclude any asset that any Assignor owns, (i) any propertyas agent, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation benefit of a security interest thereunder third party (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion Subsidiary of such property or other rights that does not result in any of the consequences specified in clause (A), (BAssignor) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other rather than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);for its own benefit.
(c) The security interest of the Collateral Administrative Agent under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Credit Agreement (Doubletree Corp)
Grant of Security Interests. (a) As The Debtor does hereby grant unto the Collateral Agent in its capacity solely as collateral agent for the equal and ratable benefit of the Secured Creditors, as security for the prompt and complete payment and performance when due of the all Obligations, each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured Parties, a continuing security interest in all of the right, title and interest of such Grantor the Debtor in, to and under all of the following personal property and fixtures (and all rights therein) of such Grantorthe Debtor, or in which or to which such Grantor the Debtor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless acquired, including each of where located:the following, except to the extent any such property constitutes Excluded Collateral (collectively, the "Collateral"):
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Accounts;
(ii) all cash and MoneyAs-Extracted Collateral;
(iii) the Cash all cash;
(iv) any Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash any Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Subject Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 belowClaims;
(vii) All Contractsall computer programs of the Debtor and all intellectual property rights therein and all other proprietary information of the Debtor, together with all Contract Rights arising thereunderincluding, without limitation, Domain Names and Trade Secret Rights;
(viii) all DocumentsCopyrights;
(ix) all EquipmentDeposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by the Debtor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(x) all FixturesDocuments;
(xi) all GoodsEquipment;
(xii) all InstrumentsGeneral Intangibles, including, without limitation, all Payment Intangibles;
(xiii) all Intellectual PropertyGoods;
(xiv) all Promissory NotesInstruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not Marks, together with the respective letter registrations and right to all renewals thereof, and the goodwill of credit is evidenced the business of the Debtor symbolized by a writing)the Marks;
(xviii) all General IntangiblesPatents;
(xix) all Payment Intangibles (including corporate and other tax refunds)Permits;
(xx) all Permitswritings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and licenses, and all recorded data of any kind or nature, regardless of the medium of recording;
(xxi) all books and records Supporting Obligations (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoingother than Letter-of-Credit Rights);
(xxii) with respect all books, records, ledger cards, files, correspondence, computer programs, tapes, disks, and related data processing software (owned by the Debtor or in which it has an interest) that at any time evidence or contain information relating to each right to payment any Collateral or performance included are otherwise necessary or helpful in each of the foregoing, any Supporting Obligation that supports such payment collection thereof or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; andrealization thereupon;
(xxiii) all substitutionsother personal property of any kind or type whatsoever; and
(xxiv) to the extent not otherwise included, replacements accessionsall Accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect of any Excluded Collateral (to any of the foregoing extent such Accessions, Proceeds and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “products are not also Excluded Collateral”).
(b) Notwithstanding anything herein to the contrarycontrary herein, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “"Collateral” (and the component terms thereof) " shall not include, (i) any property, interest or other rights for so long as and the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent granted 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein attach to the contrary, following (the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the "Excluded Assets.Collateral"):
Appears in 1 contract
Grant of Security Interests. (a) As The Debtor does hereby grant and pledge unto the Collateral Agent in its capacity solely as collateral agent for the equal and ratable benefit of the Secured Creditors, as security for the prompt and complete payment and performance when due of the all Obligations, each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured Parties, a continuing security interest in all of the right, title and interest of such Grantor the Debtor in, to and under all of the following personal property (and property(and all rights therein) of such Grantorthe Debtor, or in which or to which such Grantor the Debtor has any rights, in each case whether now existing or hereafter from time to time acquired acquired, including each of the following (collectively, the “Collateral”):
i. all Containers listed on Schedule 1, including, without limitation, all additions, appliances, parts, instruments, accessories and appurtenances thereto, all furnishings and other equipment of any kind from time to time installed or arising attached to any of such Containers, and regardless of where located:all devices used in or in or on such Containers;
(i) ii. all Related Assets with respect to the Containers;
iii. all Accounts, Chattel Paper, General Intangibles, Instruments and Inventory, in each and every Account (case to the extent they relate to any Containers;
iv. all Leases, all Lease proceeds and all rights under Leases and related agreements, including rentals, termination rights, rights to receive paymentscompel performance and guarantees, indebtedness in each case to the extent that they relate to any Containers;
v. all insurance proceeds, refunds and premium rebates and other obligations (whether constituting an Accountproceeds from dispositions, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))in each case to the extent that they relate to any Containers;
(ii) vi. all cash condemnation and Moneyconfiscation awards, in each case to the extent that they relate to any Containers;
(iii) the Cash vii. any Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash any Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) viii. all Chattel Paper (includingmoney, without limitation, all Tangible Chattel Paper cash and all Electronic Chattel Paper)cash equivalents constituting products or proceeds of any of the foregoing Collateral;
(vi) ix. all Subject Commercial Tort Claims set forth on Annex E hereto that arise from or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating relate to any of the foregoing)foregoing Collateral;
(xxii) with respect to each right to payment or performance included in each x. all policies and certificates of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any insurance and all of the foregoinginsurance proceeds, including collateral security refunds, and guarantees premium rebates, with respect to any of the foregoing and Collateral;
xi. 2013-A Special Unit of Beneficial Interest Certificate number 2013-A SUBI-1, evidencing an exclusive undivided 100% beneficial ownership interest in all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing 2013-A SUBI Assets (all of the above, the “Collateral”as defined therein).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles Special Unit of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security Beneficial Interest Certificates evidencing beneficial ownership interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) aboveforegoing Collateral; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral
xii. to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith not included above, any and the Grantors have provided the Collateral Agent an executed Form FR U-1; all products, proceeds (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxesincluding insurance proceeds), employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accountssubstitutions, and in the event constituting “Excluded Assets” (accessions of or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewithforegoing.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of the Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors (except as otherwise provided in clause (c) and (d) of this Section 1.1) (and, to the extent the following constitutes “Collateral” under, and as defined in, the Original US Security Agreement, does hereby reconfirm (without interruption) its assignment, transfer, pledge and grant to the Collateral Agent under the Original US Security Agreement of), a continuing security interest in in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising (it being understood and regardless agreed that the security interest granted herein (x) for the benefit of where located:the First Lien Creditors shall be senior in priority in all respects to the security interest granted herein for the benefit of the Second Lien Creditors and (y) for the benefit of the Second Lien Creditors shall be subject and subordinated in all respects to the security interest granted herein for the benefit of the First Lien Creditors):
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Receivable;
(ii) all cash and MoneyContracts, together with all Contract Rights arising thereunder;
(iii) all Inventory;
(iv) all Equipment (including, without limitation, all Tractor Trailers and Rolling Stock);
(v) any cash collateral account established for such Assignor for the Cash Collateral Account benefit of the Secured Creditors and all monies, securities, Instruments and other investments deposited or required to be deposited any cash collateral account;
(vi) all Deposit Accounts and all other bank, demand, time savings, cash management, passbook, certificates of deposit and similar accounts maintained by such Assignor with any Secured Creditor (or any affiliate, subsidiary or branch thereof, and wherever located) or with any other Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13foregoing accounts;
(ivvii) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks;
(viii) all Patents and Copyrights and all reissues, renewals and extensions thereof;
(ix) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including, but not limited to, Domain Names, trade secrets and Trade Secret Rights;
(x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited theretoinsurance policies;
(vxi) all other Goods, General Intangibles, Permits, Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
, Documents, Instruments and other assets (viincluding cash) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goodsof such Assignor;
(xii) all InstrumentsCommercial Tort Claims, including any Commercial Tort Claims from time to time scheduled on Annex E hereto;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviiixiv) all General Intangiblesmoney, cash or cash equivalents of any Assignor;
(xixxv) all Payment Intangibles (including corporate Software and other tax refunds);
(xx) all Permits;
(xxi) Software licensing rights, all books writings, plans, specifications and records (including schematics, all books, databasesengineering drawings, customer lists, goodwill and recordslicenses, whether tangible and all recorded data of any kind or electronicnature, which contain any information relating to any regardless of the foregoing)medium of recording;
(xxiixvi) with respect to each right to payment or performance included in each of the foregoing, any all Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationObligations; and
(xxiiixvii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, including this clause (xvii), collectively, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term continuation of this Agreement.
(dc) The Liens hereunder are granted as security only and Notwithstanding anything to the contrary contained in this Agreement, the Second Lien Creditors shall not subject have a security interest in, and the Administrative Agent or any other Secured Party grant of security interests pursuant to this Section 1.1 for the benefit of the Second Lien Creditors shall not extend to, or transfer or in any way affect or modify, any obligation or liability of any Grantor Second Lien Excluded Collateral and with respect to the Second Lien Creditors the term “Collateral” shall not include the Second Lien Excluded Collateral.
(d) Notwithstanding anything to the contrary contained in this Agreement, (i) the Note Lender Creditors shall not have a security interest in, and the grant of security interests pursuant to this Section 1.1 for the benefit of the Note Lender Creditors shall not extend to, any Additional Senior Secured Notes Excluded Collateral, and with respect to the Note Lender Creditors the “Collateral” shall not include the Additional Senior Secured Notes Excluded Collateral, and (ii) the Liens, rights, remedies and benefits of the Note Lender Creditors in respect of the Collateral or any transaction in connection therewithand this Agreement are also expressly subject to all of the terms, provisions and conditions of the Amended and Restated Intercreditor Agreement.
(e) Notwithstanding anything herein In addition, to secure the prompt and complete payment, performance and observance of the Obligations, each Assignor hereby grants to the contraryCollateral Agent, the Grantors make no representations or warranties hereunder, for itself and the covenants hereunder shall not applybenefit of Secured Creditors a right of setoff, exercisable at any time when an Event of Default has occurred and is continuing, against the property of such Assignor held by Collateral Agent or any Secured Creditor, consisting of property described above in respect Section 1.1(a) now or hereafter in the possession or custody of or in transit to Collateral Agent or any Secured Creditor, for any purpose, including safekeeping, collection or pledge, for the Excluded Assetsaccount of such Assignor, or as to which such Assignor may have any right or power.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of the ObligationsObligations (excluding the Senior [Subordinated] Secured Notes Obligations in the case of an assignment, transfer, grant or pledge of Excluded Senior [Subordinated] Secured Notes Collateral by any Assignor), each Grantor Assignor does hereby assign and transfer unto the Collateral AgentAgent for the benefit of the Secured Creditors (excluding the Senior [Subordinated] Secured Notes Creditor in the case of any assignment, transfer, pledge or grant of Excluded Senior [Subordinated] Secured Notes Collateral by any Assignor), and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors (excluding the Senior [Subordinated] Secured Notes Creditor in the case of any assignment, transfer, pledge or grant of Excluded Senior [Subordinated] Secured Notes Collateral by any Assignor), a continuing security interest in in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case case, whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Receivable;
(ii) all cash and MoneyContracts, together with all Contract Rights arising thereunder;
(iii) all Inventory;
(iv) the Cash Collateral Account and any other cash collateral account established for such Assignor for the benefit of the Secured Creditors and all moneys, securities and instruments deposited or required to be deposited in such Cash Collateral Account;
(v) all Equipment;
(vi) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks;
(vii) all Patents and Copyrights and all reissues, renewals and extensions thereof;
(viii) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including, but not limited to, trade secrets and Trade Secret Rights;
(ix) all insurance policies;
(x) all other Goods, General Intangibles, Chattel Paper (including without limitation all Tangible Chattel Paper and all Electronic Chattel Paper), Documents and Instruments of such Assignor;
(xi) all Permits;
(xii) all Tractor Trailers;
(xiii) all cash;
(xiv) all Commercial Tort Claims;
(xv) all Deposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventoryforegoing;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General IntangiblesSoftware and all Software licensing rights, all writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and licenses, and all recorded data of any kind or nature, regardless of the medium of recording;
(xix) all Payment Intangibles (including corporate and other tax refunds)Supporting Obligations;
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, including this clause (xx), collectively, the “"Collateral”").
(b) Notwithstanding anything herein to the contrarycontrary contained above in this Section 1 or elsewhere in this Agreement, in no event Excluded Senior [Subordinated] Secured Notes Collateral hereunder shall secure any of the Senior [Subordinated] Secured Notes Obligations (although the Excluded Senior [Subordinated] Secured Notes Collateral shall secure all other Obligations hereunder).
(c) As security interests for the prompt and Liens granted under Section 1.1(a) hereof attach tocomplete payment and performance when due of all of the Senior [Subordinated] Secured Notes Obligations, each Assignor does hereby assign and transfer unto the term “Collateral” (Collateral Agent and does hereby pledge and grant to the component terms thereof) shall not includeCollateral Agent for the benefit of the Senior [Subordinated] Secured Notes Creditor, (i) any propertya continuing security interest in, all of the right, title and interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant Assignor in, to and under all of the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder Collateral (other than the Excluded Senior [Subordinated] Secured Notes Collateral), whether now existing or hereafter from time to time acquired, subject to the extent that any Liens on such term specified Collateral in clause (A) or (B) above is rendered ineffective pursuant to Section 9-406, 9 407, 9-408 or 9-409 favor of the UCC Collateral Agent for the benefit of the Bank Creditors and the Other Creditors. It is understood and agreed that the assignment, transfer, pledge and grant described in the preceding sentence has been incorporated herein (or any successor provision or provisionsout of an abundance of caution) of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require to ensure that this Agreement, which first provides for the consent of a Governmental Authority Senior [Subordinated] Secured Notes Obligations to permit be secured as provided herein on the Second Restatement Effective Date, validly gives rise to the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as securing the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Senior [Subordinated] Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);Notes Obligations.
(cd) The security interest of the Collateral Agent under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term continuation of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: u.s. Security Agreement (Lli Inc)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, in each case for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such GrantorAssignor, or in which or to which such Grantor Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth on (including all Commercial Tort Claims described in Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 belowD hereto);
(vi) all Domain Names, Trade Secrets, and other proprietary information, including financial data, personal information, customer lists, supplier lists, business plans, and data collections;
(vii) All all Contracts, together with all Contract Rights arising thereunder;
(viii) all DocumentsCopyrights;
(ix) all Equipment;
(x) all FixturesDeposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(xi) all GoodsDocuments;
(xii) all InstrumentsGeneral Intangibles;
(xiii) all Intellectual PropertyGoods;
(xiv) all Promissory NotesInstruments;
(xv) all Inventory;
(xvi) all Investment PropertyProperty and Securities Accounts;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General IntangiblesMarks, together with the registrations and right to all renewals thereof, the goodwill of the business of such Assignor symbolized by the Marks and all causes of action arising prior to or after the date hereof for infringement of any of the Marks or unfair competition regarding the same;
(xix) all Payment Intangibles (including corporate and other tax refunds)Patents, together with all causes of action arising prior to or after the date hereof for infringement of any of the Patents or unfair competition regarding the same;
(xx) all Permits;
(xxi) all books Software and records (including all books, databases, customer listsrecorded data of any kind or nature, and records, whether tangible or electronic, any media on which contain any information relating to any of the foregoing)foregoing is recorded;
(xxii) with respect to each right to payment or performance included in each of the foregoing, any all Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; andObligations;
(xxiii) all substitutions, replacements accessions, claims of such Assignor against the Captive Insurance Company;
(xxiv) all other personal property and fixtures of such Assignor; and
(xxv) all Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, including this clause (xxv), the “Collateral”).
; provided that no Assignor shall be required to grant a security interest hereunder in (b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for Excluded Collateral (so long as the grant of such security interest shall constitute or result same remains “Excluded Collateral” in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings accordance with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCCdefinition thereof); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);.
(cb) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Grantor Assignor may acquire, or with respect to which any Grantor Assignor may obtain rights, at any time during the term of this Agreement.
(dc) The Liens hereunder are granted as security only and Notwithstanding anything to the contrary contained in this Agreement, (A) the Assignors shall not subject be required to take any actions to perfect the Administrative Agent Collateral Agent’s security interest hereunder in motor vehicles, Letter-of-Credit Rights, cash, Deposit Accounts and Securities Accounts, in each case except to the extent that a security interest in such types of Collateral can be perfected by (i) the filings of a UCC-1 (or any other Secured Party tosimilar) financing statement under the applicable UCC, or transfer or and (ii) in any way affect or modifythe case of Letter-of-Credit Rights, any obligation or liability of any Grantor by taking the respective actions described in Section 3.7 hereof (and the representations, warranties and covenants contained in this Agreement with respect to a perfected security interest in such Collateral shall be qualified to the extent provided in this Section 1.1(c)), (B) the Assignors shall not be required to enter into any foreign law pledges, mortgages or security agreements and (C) the Assignors shall not be required to take any actions to perfect the Collateral Agent’s security interest hereunder in any asset for which the cost of perfecting a security interest in such asset is excessive in relation to the value of the security to be offered thereby (as reasonably determined by the Collateral or any transaction Agent) so long as, in connection therewiththe case of this clause (C), the applicable Assignor delivers a written request to the Collateral Agent specifically identifying (x) the applicable assets, the value thereof and the cost of perfecting a security interest therein and (y) the perfection steps not to be taken with respect to such assets and such written request is acknowledged and agreed to by the Collateral Agent in writing.
(ed) Notwithstanding anything herein to the contrarycontrary contained in this Agreement, no security interest is assigned, transferred, pledged or granted in any “intent-to-use” application for registration of a ▇▇▇▇ filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ Act, 15 U.S.C. § 1051, prior to the filing with respect thereto of a verified “Statement of Use” pursuant to Section 1(d) of the ▇▇▇▇▇▇ Act or an “Amendment to Allege Use” pursuant to Section 1(c) of the ▇▇▇▇▇▇ Act, to the extent that, and during the period in which, the Grantors make no representations assignment, transfer, pledge or warranties hereunder, and grant of a security interest in such intent-to-use application would impair the covenants hereunder shall not apply, in respect validity or enforceability of the Excluded Assetsany registration that issues from that intent-to-use application under applicable federal law.
Appears in 1 contract
Sources: Security Agreement (Town Sports International Holdings Inc)
Grant of Security Interests. (a) As security for To secure the prompt and complete payment and performance when due of all Obligations (as defined in the Second Amended Credit Agreement), including all Revolving Loans, all LC Obligations, all indemnification obligations under the Loan Documents and all liabilities and obligations of each Grantor does Guarantor under the Subsidiary Guaranty, each Obligor hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant grants to the Collateral Agent, for the benefit of Agent and the Secured PartiesLenders, a continuing security interest in all of the right, title and interest of such Grantor in, to Lien on, assignment of and under right of set-off against all of the following personal property (and all rights therein) of such GrantorObligor, or in which or to which such Grantor has any rights, in each case whether now owned or existing or hereafter from time to time created, acquired or arising and regardless of where wherever located:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Accounts;
(ii) all cash Goods, including all Equipment and MoneyInventory;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13Chattel Paper;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited theretoDocuments;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper)Instruments;
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 belowSupporting Obligations;
(vii) All Contracts, together with all Contract Rights arising thereunderGeneral Intangibles (including Payment Intangibles and Software);
(viii) all DocumentsLetter-of-Credit Rights;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xviix) all Letter-of-Credit Rights (whether money, cash, cash equivalents, securities and other property of any kind of any Obligor held directly or not the respective letter of credit is evidenced indirectly by a writing)Agent or any Lender;
(xviiixi) all General IntangiblesDeposit Accounts, credits, and balances with the Agent or any Lender or any of their Affiliates or any other financial institution with which any Obligor maintains deposits, including any Payment Accounts;
(xixxiii) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databasesrecords and other property related to or referring to any of the foregoing, customer listsincluding books, and records, whether tangible account ledgers, data processing records, computer software and other property and General Intangibles at any time evidencing or electronic, which contain any information relating to any of the foregoing);
(xxiixiv) with respect to each right to payment or performance included the Commercial Tort Claims in each which an Obligor is a plaintiff and which are described in Schedule IV attached hereto; and
(xv) all accessions to, substitutions for and replacements, products and proceeds of any of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutionsincluding, replacements accessionsbut not limited to, Proceeds and products proceeds of any insurance policies, claims against third parties, and condemnation or requisition payments with respect to all or any of the foregoing. All of the foregoing, including collateral security and guarantees with respect together with, all equity interests in Subsidiaries to any of the foregoing extent pledged to Agent and all cashother property of any Obligor in which Agent or any Lender may at any time be granted a Lien as security for the Obligations, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, are herein collectively referred to as the “Collateral”).
(b) Notwithstanding anything herein to ; provided, however, that the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) Collateral shall not include, (i) include any property, interest rights or other rights for so long as interests of an Obligor in any contract if under the grant terms of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms ofcontract, or a default under, any General Intangible, lease, license, applicable law with respect to such contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation valid grant of a security interest thereunder 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 has not been or is not otherwise obtained or under applicable law such prohibition cannot be waived; provided, further, that the foregoing exclusion shall in no way be interpreted (other than i) to the extent that apply if any such term specified in clause prohibition is ineffective or unenforceable under the UCC (A) or (B) above is rendered ineffective pursuant to Section including Sections 9-406, 9 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions409) of any relevant jurisdiction or any other then-applicable law or (ii) so as to limit, impair or otherwise affect Agent’s unconditional continuing security interest in and Lien upon any rights or interests of such Obligor in or to monies due or to become due under any such contract (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtainedAccounts); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(db) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any All of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder Obligations shall not apply, in respect be secured by all of the Excluded AssetsCollateral.
Appears in 1 contract
Sources: Security Agreement (Applica Inc)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of the Obligations, each Grantor Assignor does hereby sell, assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the ratable benefit of the Bank Creditors, the Interest Rate Protection Creditors and the Senior Noteholders, in each case to the extent from time to time holding Obligations of such Assignor secured hereunder (collectively, and together with the Collateral Agent, the "Secured PartiesCreditors"), a continuing security interest in of first priority (subject to Liens evidenced by Permitted Filings and Liens permitted under Section 9.01 of the Credit Agreement) in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
acquired: (i) each and every Account (and all rights to receive paymentsReceivable, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
, (iii) all Inventory, (iv) the Cash Collateral Account established for each Assignor and all moneys, securities and instruments deposited or required to be deposited in such Cash Collateral Account, (v) all Equipment, (vi) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks, (vii) all Patents and Copyrights, and all reissues, renewals or extensions thereof, (viii) all Documents;
computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including, but not limited to, trade secrets, (ix) all Equipment;
other Goods, General Intangibles, Chattel Paper, Documents and Instruments (other than the Pledged Securities and any other capital stock or promissory notes not required to be pledged pursuant to the Subsidiaries Pledge Agreement) and (x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, collectively, the “"Collateral”").
(b) Notwithstanding anything herein to the contrary; provided, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than however that to the extent that any such term specified Contract may be terminated (in clause (A) or (B) above is rendered ineffective pursuant accordance with the terms thereof after giving effect to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles in the event of equity) or (C) require the consent of a Governmental Authority to permit the grant granting of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxestherein, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant granting of a security interest therein would impair in any Contract shall violate applicable law, then the validity or enforceability of such application under applicable federal law (other than security interest granted hereby shall be limited to the extent necessary so that such rights can Contract may not be perfected by so terminated or no such violation of law shall exist, as the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);case may be.
(cb) The security interest of the Collateral Agent under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term continuation of this Agreement.
(dc) The Liens hereunder are granted as security only If (i) a Bankruptcy Default or Notified Acceleration Event has occurred and shall not subject the Administrative Agent is continuing or (ii) any other Event of Default or Acceleration Event has occurred and is continuing, but in the case of this clause (ii) only if, and to the extent that, the Collateral Agent (acting at the direction of the Required Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect Creditors) has given notice to any of the Assignors to take the actions specified below in this sentence, then in either such case all cash Proceeds of, and cash payments received in respect of, Collateral shall be paid by such Assignor (or any transaction in connection therewith.
(ethe respective payor) Notwithstanding anything herein directly to the contraryCash Collateral Account or as otherwise directed by the Collateral Agent. At any time while the circumstances described in the immediately preceding sentence do not exist, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, all cash payments received in respect of the Excluded AssetsCollateral (including without limitation all payments received in respect of Receivables and Contracts, or in payment for sales of Inventory, but excluding cash Proceeds of sales of other Collateral unless the respective sale and release of Collateral is permitted pursuant to this Agreement and the Credit Agreement) shall be paid to the respective Assignor.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of the Secured Obligations, each Grantor Debtor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured Parties, a continuing security interest in in, all of the right, title and interest of such Grantor Debtor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and Receivable, including, without limitation, all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Accounts;
(ii) all cash and Moneycash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required Claims;
(vi) all computer programs of such Debtor and all intellectual property rights therein and all other proprietary information of such Debtor, including but not limited to be provided pursuant to Section 3.1 belowDomain Names and Trade Secret Rights;
(vii) All all Contracts, together with all Contract Rights arising thereunder;
(viii) all DocumentsCopyrights;
(ix) all Equipment;
(x) all FixturesDeposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Debtor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(xi) all GoodsDocuments;
(xii) all InstrumentsGeneral Intangibles, including, without limitation, all Payment Intangibles;
(xiii) all Intellectual PropertyGoods and Accessions;
(xiv) all Promissory NotesInstruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General IntangiblesMarks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Debtor symbolized by the Marks;
(xix) all Payment Intangibles (including corporate and other tax refunds)Patents;
(xx) all Permits;
(xxi) all books Software and records (including all booksSoftware licensing rights, databasesall writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and recordslicenses, whether tangible and all recorded data of any kind or electronicnature, which contain any information relating to any regardless of the foregoing)medium of recording;
(xxii) with respect to each right to payment or performance included in each of the foregoing, any all Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationObligations; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Grantor Debtor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term continuation of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject . Notwithstanding anything to the Administrative Agent or any other Secured Party tocontrary contained herein, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or shall at no time include any transaction in connection therewithitems which would at such time constitute Excluded Collateral.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the Obligations, each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured Parties, a continuing security interest in all of the right, title and interest of such Grantor in, to and under all of the following personal property (and all rights therein) of such Grantor, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All all Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Grant of Security Interests. (a) As security for To secure the prompt due and complete punctual payment of all Finance Obligations, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing or due or to become due, in accordance with the terms thereof and to secure the performance when due of all of the Obligationsobligations of each Loan Party hereunder and the other Loan Parties hereunder and under the other Finance Documents, each Grantor does Loan Party hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant grants to the Collateral Agent, Agent for the benefit of the Secured Finance Parties a security interest in, and each Loan Party hereby pledges and assigns to the Collateral Agent for the benefit of the Finance Parties, a continuing security interest in all of the such Loan Party’s right, title and interest of such Grantor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now owned or existing or hereafter from time to time acquired acquired, created or arising arising, whether tangible or intangible, and regardless of where located:located (other than any item which on any date constitutes an Excluded Contract or Excluded Equipment) (all of which are herein collectively called the “Collateral”):
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible))Receivables;
(ii) all cash and MoneyInventory;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13General Intangibles;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xivv) all Promissory NotesDocuments and all Supporting Obligations of any kind given by any Person with respect thereto;
(xvvi) all InventoryEquipment;
(xvivii) all Investment PropertyProperty and all Supporting Obligations of any kind given by any Person with respect thereto;
(xviiviii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing)Assigned Agreements;
(xviiiix) all General IntangiblesDeposit Accounts;
(xixx) the Collateral Accounts, all Payment Intangibles (including corporate cash and other tax refunds)property deposited therein or credited thereto from time to time, the Liquid Investments made pursuant to Section 2.07 and other monies and property of any kind of any Loan Party maintained with or in the possession of or under the control of the Collateral Agent;
(xx) all Permits;
(xxixi) all books and records (including all booksincluding, databaseswithout limitation, customer lists, credit files, computer programs, printouts and other computer materials and records, whether tangible or electronic, which contain any information relating ) of each Loan Party pertaining to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationCollateral; and
(xxiiixii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to or any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (xi) hereof; provided, however, that, the Collateral shall not include (i) any property or assets owned by any Loan Party that is a Foreign Subsidiary, (ii) any voting security that is issued by a Foreign Subsidiary (that is a corporation for United States federal income tax purposes) and owned by any Loan Party, if and to the extent that the inclusion of such voting security in the Collateral would cause the Collateral pledged by such Loan Party hereunder or under any other Finance Document to include in the aggregate more than 65% of the total combined voting power of all classes of voting securities of such Foreign Subsidiary, (iii) assets securing Purchase Money Obligations or Capital Lease Obligations permitted to be incurred pursuant to the Indenture and all Term Loan Agreements, if any, (iv) any Capital Stock and other securities of each Subsidiary of DRI to the extent that the pledge of such Capital Stock or other securities to secure the Finance Obligations would cause such Subsidiary to be required to file separate financial statements with the Securities and Exchange Commission pursuant to Rule 3-16 of Regulation S-X (as in effect from time to time) of the Securities and Exchange Commission, (v) any Capital Stock or other securities of any Person that becomes a Guarantor after the Issue Date that, together with all other such Guarantors created, acquired or invested in after the Issue Date, have a collective Fair Market Value of less than $30,000,000 and (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest any proceeds or products from any and all of the foregoing unless such proceeds or products would otherwise constitute Collateral. Notwithstanding the foregoing, if granting or perfecting any Lien to secure the Finance Obligations on any Collateral Agent (i) cannot be granted or perfected under this Agreement extends applicable law, none of DRI, ▇▇▇▇▇ ▇▇▇▇▇ or the Guarantors will be required to grant or perfect, as applicable, such Lien and (ii) that consists of personal property rights that are licensed or leased from a third-party requires the consent of such third party pursuant to the terms of an applicable license or lease agreement, and such terms are enforceable under applicable law, DRI, ▇▇▇▇▇ ▇▇▇▇▇ or the Guarantors, as the case may be, will use all Collateral which any Grantor may acquire, or commercially reasonable efforts to obtain such consent with respect to which any Grantor may obtain rightsthe granting or perfecting of such Lien, at any time during but if the term of this Agreement.
(d) The Liens hereunder are granted as security only and shall third party does not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein consent to the contrarygranting or perfecting of such Lien after the use of commercially reasonable efforts, none of DRI, ▇▇▇▇▇ ▇▇▇▇▇ or the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded AssetsGuarantors will be required to do so.
Appears in 1 contract
Grant of Security Interests. (a) As Subject to the terms of the Intercreditor Agreement with respect to rights and remedies between the First-Lien Collateral Agent and the Second-Lien Collateral Agent, as security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor the Assignor does hereby assign and transfer unto the Third-Lien Collateral Agent, and does hereby pledge and grant to the Third-Lien Collateral Agent, for the benefit of the Secured PartiesCreditors, a continuing security interest in all of the right, title and interest of such Grantor the Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such Grantorthe Assignor, or in which or to which such Grantor the Assignor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where locatedacquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and MoneyCash Equivalents;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13;
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(viv) all Commercial Tort Claims set forth on Annex E hereto Claims;
(vi) all computer programs of the Assignor and all intellectual property rights therein and all other proprietary information of the Assignor, including but not limited to all Software, and all Software licensing rights, all writings, plans, specifications and schematics, all engineering drawings, customer lists, goodwill and licenses, and all recorded data of any kind or for which notice is required to be provided pursuant to Section 3.1 belownature, regardless of the medium of recording;
(vii) All all Domain Names;
(viii) all Trade Secret Rights;
(ix) Contracts, together with all Contract Rights arising thereunder;
(viiix) all Copyrights;
(xi) all Equipment;
(xii) all Deposit Accounts and all other demand, deposit, time, savings, cash management and passbook accounts maintained by the Assignor with any Person and all monies, securities, Instruments and other investments deposited in any of the foregoing;
(xiii) all Documents;
(ixxiv) all EquipmentGeneral Intangibles;
(x) all Fixtures;
(xixv) all Goods;
(xiixvi) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xvxvii) all Inventory;
(xvixviii) all Investment Property;
(xviixix) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviiixx) all General IntangiblesMarks;
(xixxxi) all Payment Intangibles (including corporate and other tax refunds)Patents;
(xxxxii) all Permits;
(xxixxiii) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting ObligationObligations; and
(xxiiixxiv) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of any item excluded pursuant to the foregoing next succeeding sentence (except to the extent such proceeds would independently be excluded pursuant to said sentence) (all of the above, the “"Collateral”").
(b) . Notwithstanding anything herein to the contrarycontrary contained above, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach toCollateral include, and the term “Collateral” no Assignor shall be deemed to have granted a security interest (unless and the component terms thereofuntil as further provided below) shall not include, in (ia) any propertylease, interest license, contract, property rights or other agreement to which the Assignor is a party or any of its rights or interests thereunder or property subject thereto if and for so long as the grant of such security interest shall constitute or result in (Ai) the abandonment, invalidation or unenforceability of same or (ii) in a breach or termination pursuant to the terms of, or a default under, any General Intangible, such lease, license, contract, property rights or agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in the case of preceding clause (Ai) or (Bii) above is , as applicable) would be rendered ineffective pursuant to Section Sections 9-406, 9 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy lawsthe Bankruptcy Code) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); , provided, however, that such (x) the security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severableinterests hereunder, shall attach immediately to any portion of such lease, license, contact, property rights or other rights agreement that does not result in any of the consequences specified in clause (A), (Bi) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside to any property or assets described above in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in this clause (iva) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to on the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in first date upon which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets circumstances described in preceding clauses (i) through and/or (viii) hereof(as relevant) no longer exist with respect thereto, collectively(b) to the extent such assets are the property of the Assignor, any property or asset of Starpower Communications, LLC for so long as the organizational documents of such entity prohibits the granting of a security interest in such property or asset, or (c) to the extent such assets are the property of the Assignor, the “Excluded Assets”);equity interests of (x) Megacable, S.A. de C.V., MCM Holdings, S.A. de C.V. and Megacable Telecommunicaciones, S.A. de C.V. for so long as the organizational documents of such entities prohibit the granting of a security interest in such equity interests; provided that such security interest shall attach immediately when such prohibition is no longer in effect or (y) more than 65% of the Voting Equity Interests of any Foreign Corporation; provided that each Assignor shall be required to pledge hereunder 100% of any Non-Voting Equity Interests at any time and from time to time acquired by such Assignor of any Foreign Corporation.
(cb) The security interest of the Third-Lien Collateral Agent under this Agreement extends to all Collateral which any Grantor the Assignor may acquire, or with respect to which any Grantor the Assignor may obtain rights, at any time during the term of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(ec) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, relative rights and remedies of Third-Lien Collateral Agent shall be subject to and governed by the terms of the Intercreditor Agreement at any time the Intercreditor Agreement is in effect. In the event of any inconsistency between the terms hereof and the covenants hereunder Intercreditor Agreement, the Intercreditor Agreement shall not apply, control at any time the Intercreditor Agreement is in respect of the Excluded Assetseffect.
Appears in 1 contract
Sources: Security Agreement (RCN Corp /De/)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of the all of its Obligations, each Grantor Assignor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, Agent for the benefit of the Secured PartiesCreditors, a continuing security interest in of first priority (subject to Permitted Liens) in, all of the right, title and interest of such Grantor Assignor in, to and under all of the following personal property (and all rights therein) of such Grantorfollowing, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
acquired: (i) each and every Account (and all rights to receive paymentsReceivable, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
Contracts, together with all Contract Rights arising thereunder (other than Contracts which by their terms cannot be pledged (although the right to receive payments of money thereunder shall not be excluded from the security interest created hereunder)), (iii) all Inventory, (iv) all Equipment, (v) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the Marks, (vi) all Patents and Copyrights, (vii) all computer pro grams of such Assignor and all intellectual property rights therein (other than such programs and rights which by their terms cannot be pledged) and all other proprietary information of such Assignor, including, but not limited to, trade secrets, (viii) all other Goods, General Intangibles, Chattel Paper, Documents and Instruments, (ix) the Cash Collateral Account and all monies, securities, Instruments securities and other investments instruments deposited or required to be deposited in the such Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, collectively, the “"Collateral”").
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral of the kind which is the subject of this Agreement which any Grantor Assignor may acquire, or with respect to which any Grantor may obtain rights, acquire at any time during the term continuation of this Agreement.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security Agreement (McMS Inc)
Grant of Security Interests. (a) As security for In order to secure the prompt and complete payment and performance when due of the Obligations, each Grantor does hereby assign and transfer unto the Collateral Agent, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured PartiesObligations (as defined below) in accordance with the terms thereof, Debtor hereby grants to the Secured Parties a continuing security interest in and to all of the right, title and interest of Debtor in the following property, (all being collectively referred to as the “Collateral”):
(a) All goods, inventory, merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such Grantor ininventory as is temporarily out of Debtor’s custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above;
(b) All general intangibles (other than the “Intellectual Property” described in paragraph (e)), contract right, leases, license agreements, franchise agreements, blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, computer programs, computer discs, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payments of insurance and rights to payment of any kind;
(c) All accounts, contract rights, royalties, license rights and all other forms of obligations owing to Debtor, whether or not arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Debtor, and whether or not earned by performance, and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Debtor;
(d) All documents, cash, deposit accounts, securities, investment property, letters of credit, certificates of deposit, instruments and chattel paper and Debtor’s books relating to the foregoing;
(e) All goodwill, trademarks, servicemarks, trade styles, trade names, patents, patent applications, copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work thereof, whether published or unpublished; all trade secret rights, including all rights to unpatented inventions, know-how, operating manuals, license rights and agreements and confidential information, now owned or hereafter acquired; all mask work or similar rights available for the protection of semiconductor chips; all claims for damages by way of any past, present and future infringement of any of the foregoing, collectively the “Intellectual Property”. Lender’s Security Interest in any Intellectual Property is only to the extent that (i) such Intellectual Property is proceeds of collateral other than Intellectual Property or (ii) any collateral described in paragraph (c) above is proceeds of such Intellectual Property; and
(f) All Debtor’s books relating to the foregoing and any and all claims, rights and interests in any of the above and all substitutions for, additions and accessions to and under proceeds thereof.
(g) All shares of capital stock in OCPS held by Debtor (the “Shares”); and
(h) All proceeds of, and all other profits, rentals or receipts, in whatever form, arising from the collection, sale, lease, exchange, assignment, licensing or other disposition of, or realization upon, any of the following personal property Collateral described in subclauses (and a) through (g) above including, without limitation, all rights therein) claims of such GrantorDebtor against third parties for loss of, damage to or destruction of, or in which for proceeds payable under, or unearned premiums with respect to, policies of insurance with respect to which such Grantor has any rightsCollateral, and any condemnation or requisition payments with respect to any Collateral, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
(ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
(viii) all Documents;
(ix) all Equipment;
(x) all Fixtures;
(xi) all Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”)arising.
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in (A) a breach or termination pursuant to the terms of, or a default under, any General Intangible, lease, license, contract, agreement or other document, (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 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 then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.
Appears in 1 contract
Sources: Security Agreement (Revcare Inc)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance performance, when due due, of: (i) all of the Obligations (other than Obligations arising under the Warrants, any Common Stock issued upon exercise of the Warrants or the Registration Rights Agreement) to the Lender under the Credit Agreement and the other Loan Documents, and (ii) all of the Cornell Capital Obligations, each Grantor of the Debtors does hereby sell, assign and transfer unto Airlie, as Collateral Agent for (A) itself, (B) any subsequent Lender under the Collateral AgentLoan Documents, and (C) Cornell Capital, and does hereby pledge and grant to the Collateral Agent, for the benefit of the Secured Parties, a first priority Lien and continuing security interest in all of the right, title and interest of such Grantor the Debtors in, to and under all of the following assets and properties, real, personal property (and all rights therein) or mixed, of such Grantorthe Debtors, or in which or to which such Grantor has any rights, in each case whether now existing or hereafter from time to time acquired or arising and regardless of where located:
acquired, including, without limitation: (i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper (including Electronic Chattel Paper), Instrument, Document or General Intangible));
Receivable; (ii) all cash and Money;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; \\DC - 066299/000158000182 - 9848070 v13
(iv) all (x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all cash, Money, checks, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts and Security Entitlements and Securities credited thereto, and all cash, Money, checks, marketable securities, Financial Assets and other property held therein or credited thereto, and (z) Commodity Accounts and all cash, Money, marketable securities, Financial Assets and other property held therein or credited thereto;
(v) all Chattel Paper (including, without limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vi) all Commercial Tort Claims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(vii) All Contracts, together with all Contract Rights arising thereunder;
; (iii) all Inventory; (iv) all Equipment; (v) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Debtor symbolized by the Marks; (vi) the Master Depositary Account established for such Debtor and all moneys, Securities and Instruments deposited or required to be deposited in such Master Depositary Account; (vii) all Patents and Copyrights and all reissues, renewals or extensions thereof; (viii) all Documents;
computer programs of such Debtor and all intellectual property rights therein and all other proprietary information of such Debtor, including, but not limited to, Trade Secret Rights; (ix) all Equipment;
insurance policies; (x) all Fixtures;
(xi) all other Goods;
(xii) all Instruments;
(xiii) all Intellectual Property;
(xiv) all Promissory Notes;
(xv) all Inventory;
(xvi) all , General Intangibles, Investment Property;
, Commercial Tort Claims, Chattel Paper, Documents, Securities and Instruments (xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all General Intangibles;
(xix) all Payment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all books and records (including all books, databases, customer lists, and records, whether tangible or electronic, which contain any information relating to any of the foregoing);
(xxii) with respect to each right to payment or performance included in each of the foregoing, any Supporting Obligation that supports such payment or performance and any Lien that secures such right to payment or performance or secures any such Supporting Obligation; and
(xxiii) all substitutions, replacements accessions, Proceeds and products of any and all of the foregoing, including collateral security and guarantees with respect to any of the foregoing and all cash, Money, insurance proceeds, Instruments, Securities, Financial Assets, income, royalties, payments, licensing, damages and Deposit Accounts constituting Proceeds of the foregoing (all of the above, the “Collateral”).
(b) Notwithstanding anything herein to the contrary, in no event shall the security interests and Liens granted under Section 1.1(a) hereof attach to, and the term “Collateral” (and the component terms thereof) shall not include, (i) any property, interest or other rights for so long as the grant of such security interest shall constitute or result in INCLUDING (A) a breach or termination pursuant to the terms ofSecurities and Instruments constituting the Davel Credit Parties Debt, or a default underthe Cerberus Subordinated Debt and the Shares of Davel Communications, any General IntangibleInc. that are the subject of the Collateral Debt and Securities Assignment Agreement, lease, license, contract, agreement or other document, and (B) a breach of any law or regulation which prohibits the creation of a security interest thereunder (other than to Securities that are the extent that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 9-406, 9 407, 9-408 or 9-409 subject of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a Governmental Authority to permit the grant of a security interest therein (and such consent has not been obtained); provided, however, that such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation, unenforceability breach or termination shall no longer be effective and to the extent severable, shall attach immediately to any portion of such property or other rights that does not result in any of the consequences specified in clause (A), (B) or (C) above; (ii) the MobilePro Pledge Agreement Collateral, including any asset of a Grantor excluded from and the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Purchaser Pledge Agreement, as applicable; (iii) any treasury stock of a Grantor or other Margin Stock, in each case, unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; provided however, that each applicable Grantor shall provide to the Secured Parties notice of the existence any Margin Stock (other than treasury stock) that would constitute Collateral absent this proviso at the time of delivery of any financial statements required to be delivered pursuant to Section 6.01(a) or 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Parties have made such necessary filings with the FRB in connection therewith and the Grantors have provided the Collateral Agent an executed Form FR U-1; (iv) Deposit Accounts the balance of which consists (x) exclusively of withheld income taxes, employment taxes, or amounts required to be paid over to certain employee benefit plans and (y) segregated deposit accounts constituting and the balance of which consists solely of funds set aside in connection with tax, payroll and trust accounts, and in the event constituting “Excluded Assets” (or such similar term) under the ABL Credit Documents, any other account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any Vehicles and other assets subject to certificates of title (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC); and (vi) any United States “intent-to-use” Trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which the grant of a security interest therein would impair the validity or enforceability of such application under applicable federal law (other than to the extent such rights can be perfected by the filing of a financing statement under the UCC) (the assets described in preceding clauses (i) through (vi) hereof, collectively, the “Excluded Assets”);
(c) The security interest of the 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.
(d) The Liens hereunder are granted as separate collateral security only and shall not subject the Administrative Agent or any other Secured Party to, or transfer or in any way affect or modify, any obligation or liability of any Grantor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Grantors make no representations or warranties hereunder, and the covenants hereunder shall not apply, in respect of the Excluded Assets.the
Appears in 1 contract