Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of its Obligations, each 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 Creditors, a continuing security interest in all of the right, title and interest of such Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such Assignor, or in which or to which such Assignor has any rights, in each case whether now existing or hereafter from time to time acquired: (i) each and every Account; (ii) all cash; (iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account; (iv) all Chattel Paper (including without limitation all Tangible Chattel Paper and all Electronic Chattel Paper); (v) all Commercial Tort 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 Domain Names and Trade Secret Rights; (vii) all Contracts, together with all Contract Rights arising thereunder; (viii) all Copyrights; (ix) all Equipment; (x) 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; (xi) all Documents; (xii) all General Intangibles; (xiii) all Goods; (xiv) all Instruments; (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 Marks, 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 Patents; (xx) all Permits; (xxi) 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; (xxii) all Supporting Obligations; and (xxiii) all Proceeds and products of any and all of the foregoing (all of the above, the "Collateral"). (b) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Assignor may acquire, or with respect to which any Assignor may obtain rights, at any time during the term of this Agreement. (c) Notwithstanding clauses (a) and (b) of this Section 1.1, the payment and performance of the Obligations shall not be secured by: (i) any contract, license, permit or franchise 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 (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 Creditor and (y) any right to payment or other monies due under any such contract, license, permit, franchise, rights or property described above shall not be excluded from the Collateral and shall at all times be subject to the security interest created pursuant to this Agreement.
Appears in 1 contract
Sources: Security Agreement (Dominos Inc)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of its Obligations, each 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 Creditors, a continuing security interest in all of the right, title and interest of such Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such Assignor, or in which or to which such Assignor has any rights, in each case whether now existing or hereafter from time to time acquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper, Instrument, Document of Title or Intangible));
(ii) all cashcash and money;
(iii) the Cash Collateral Account and all moniesmoneys, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account;
(iv) all Chattel Paper (including without limitation all Tangible Chattel Paper x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all Electronic Chattel Paper)cash, money, cheques, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts, Collateral Accounts and security entitlements and Securities credited thereto, and all cash, money, cheques, 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 Commercial Tort ClaimsChattel Paper;
(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 Domain Names and Trade Secret Rightspromissory notes;
(vii) all Contracts, together with all Contract Rights arising thereunderInstruments and Securities;
(viii) all CopyrightsInventory;
(ix) all Equipment;
(x) 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;
(xi) all Documents;
(xii) all General Intangibles;
(xiii) all Goods;
(xiv) all Instruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xviix) all Letter-of-Credit Rights Intangibles (whether or not the respective letter of credit is evidenced by a writingincluding corporate and other tax refunds);
(xviiixi) all Marksto the extent relating to, together with the registrations and right to all renewals thereof, and the goodwill evidencing or governing any of the business items referred to in preceding clauses (i) through (x), all Permits, Documents of such Assignor symbolized by 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 Marksforegoing (including to the purchase or import of any Inventory);
(xixxii) to the extent relating to, evidencing or governing any of the items referred to in the preceding clauses (i) through (xi), all PatentsSupporting Obligations;
(xxxiii) all Permits;
books and records relating to the items referred to in the preceding clauses (xxii) through (ix) (including all Software and all Software licensing rightsbooks, all writings, plans, specifications and schematics, all engineering drawingsdatabases, customer lists, goodwill and licensesrecords, and all recorded data of whether tangible or electronic, which contain any kind or nature, regardless information relating to any of the medium of recording;
items referred to in the preceding clauses (xxiii) all Supporting Obligationsthrough (xii)); 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, money, 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 interest and 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 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 40(4) of the PPSA (or any successor provision or provisions of the PPSA of any relevant jurisdiction or any other applicable law) 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 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 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) 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 (iv) the last day of the term of any lease or sublease of real property or any agreement for a lease 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 (the assets described in the preceding clauses (i) through (iv) hereof, 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.
(bc) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Assignor may acquire, or with respect to which any Assignor may obtain rights, at any time during the term of this Agreement.
(c) . Notwithstanding clauses (a) and (b) of this Section 1.1anything herein to the contrary, the payment Assignors make no representations or warranties hereunder, and performance the covenants hereunder shall not apply, in respect of the Obligations shall not be secured by:
(i) any contract, license, permit or franchise 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
(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 Creditor and (y) any right to payment or other monies due under any such contract, license, permit, franchise, rights or property described above shall not be excluded from the Collateral and shall at all times be subject to the security interest created pursuant to this AgreementExcluded 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 its Obligations, each 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 Creditors, a continuing security interest in all of the right, title and interest of such Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such Assignor, or in which or to which such Assignor has any rights, in each case whether now existing or hereafter from time to time acquired:
(i) each and every Account (and all rights to receive payments, indebtedness and other obligations (whether constituting an Account, Chattel Paper, Instrument, Document of Title or Intangible));
(ii) all cashcash and money;
(iii) the Cash Collateral Account and all moniesmoneys, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account;
(iv) all Chattel Paper (including without limitation all Tangible Chattel Paper x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all Electronic Chattel Paper)cash, money, cheques, other negotiable instruments, funds and other evidences of payments held therein or credited thereto, (y) Securities Accounts, Collateral Accounts and security entitlements and Securities credited thereto, and all cash, money, cheques, 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 Commercial Tort ClaimsChattel Paper;
(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 Domain Names and Trade Secret Rightspromissory notes;
(vii) all Contracts, together with all Contract Rights arising thereunderInstruments and Securities;
(viii) all CopyrightsInventory;
(ix) all Equipment;
(x) 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 foregoingGoods;
(xi) all Documents;
(xii) all General Intangibles;
(xiii) all Goods;
(xiv) all Instruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xviixii) all Letter-of-Credit Rights Intangibles (whether or not the respective letter of credit is evidenced by a writingincluding corporate and other tax refunds);
(xviiixiii) all Marksto the extent relating to, together with the registrations and right to all renewals thereof, and the goodwill evidencing or governing any of the business items referred to in preceding clauses (i) through (xii), all Permits, Documents of such Assignor symbolized by 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 Marksforegoing (including to the purchase or import of any Inventory);
(xixxiv) to the extent relating to, evidencing or governing any of the items referred to in the preceding clauses (i) through (xiii), all PatentsSupporting Obligations;
(xxxv) all Permits;
books and records relating to the items referred to in the preceding clauses (xxii) through (x) (including all Software and all Software licensing rightsbooks, all writings, plans, specifications and schematics, all engineering drawingsdatabases, customer lists, goodwill and licensesrecords, and all recorded data of whether tangible or electronic, which contain any kind or nature, regardless information relating to any of the medium of recordingitems referred to in the preceding clauses (i) through (xiii);
(xxiixvi) all Supporting Obligations; 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; 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 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 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 40(4) of the PPSA (or any successor provision or provisions of the PPSA of any relevant jurisdiction or any other applicable law) 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 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 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) 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 (iv) the last day of the term of any lease or sublease of real property or any agreement for a lease 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; (the assets described in the preceding clauses (i) through (iv) hereof, 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 Assignor may acquire, or with respect to which any Assignor may obtain rights, at any time during the term of this Agreement.
(cd) Notwithstanding clauses (a) and (b) of this Section 1.1anything herein to the contrary, the payment Assignors make no representations or warranties hereunder, and performance the covenants hereunder shall not apply, in respect of the Obligations shall not be secured by:
(i) any contract, license, permit or franchise 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
(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 Creditor and (y) any right to payment or other monies due under any such contract, license, permit, franchise, rights or property described above shall not be excluded from the Collateral and shall at all times be subject to the security interest created pursuant to this AgreementExcluded Assets.
Appears in 1 contract
Grant of Security Interests. To secure all of the Guarantor’s Obligations, Guarantor grants to the Lenders the following security interests:
(a) As security for the prompt and complete payment and performance when due of subject to Section 1(d)(i), a first priority fixed charge on all of its Obligations, each 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 Creditors, a continuing security interest in all of the Guarantor’s right, title and interest of such Assignor in, to and under its Intellectual Property Collateral (including without limitation those Copyrights, Patents and Trademarks listed on Exhibit B hereto and including without limitation all proceeds thereof (such as, by way of example but not by way of limitation, license royalties and proceeds of infringement suits), the following personal property right to ▇▇▇ for past, present and fixtures (future infringements, all rights corresponding thereto throughout the world and all rights thereinre-issues, divisions continuations, renewals, extensions and continuations-in-part thereof (together “Fixed IP Charge”);
(b) subject to Section 1(d)(ii), a first priority fixed charge (subject only to the prior security interests of: (i) ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and Avis in, collectively, up to $100,000 of such Assignorcash, or in which or to which such Assignor has any rightsand (ii) Bank Hapoalim, in each case securing only those obligations specified in Schedule 2.3 hereto) (“Fixed Bank Account Charge”) on the Guarantor’s bank account at Bank Hapoalim, Branch #610, Account#426990 (the “Bank Account”) and including without limitation all of its cash, investment property, securities, deposit accounts, trust accounts and any other value attributed to the Guarantor and held by Bank Hapoalim in Israel (“Bank Hapoalim”) at the Bank Account or at any other account or deposit box with Bank Hapoalim now or hereinafter acquired (collectively the “Bank Hapoalim Collateral”); and
(c) a first ranking floating charge (the “Floating Charge”), on all of Guarantor’s rights, titles and interest in all its present and future tangible and intangible assets of any kind whether now existing contingent or hereafter from time absolute relating to time acquired:
the property of the Guarantor described in Exhibit C (collectively, the “Floating Collateral”). For the avoidance of doubt such Collateral shall exclude all assets of the Company with the exception of the following (i) each and every Account;
Intellectual Property Collateral, (ii) all cash;
Collateral (as defined in the Share Pledge Agreement) and (iii) the Cash Collateral Account Bank Hapoalim Collateral, all as further set forth and all monies, securities, Instruments and other investments deposited or required to be deposited described in the Cash Collateral Account;Exhibit C.
(ivd) all Chattel Paper (including without limitation all Tangible Chattel Paper and all Electronic Chattel Paper);
(v) all Commercial Tort Claims;
(vi) all computer programs Notwithstanding any other provision of 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;
(vii) all Contracts, together with all Contract Rights arising thereunder;
(viii) all Copyrights;
(ix) all Equipment;
(x) 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;
(xi) all Documents;
(xii) all General Intangibles;
(xiii) all Goods;
(xiv) all Instruments;
(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 Marks, 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 Patents;
(xx) all Permits;
(xxi) 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;
(xxii) all Supporting Obligations; and
(xxiii) all Proceeds and products of any and all of the foregoing (all of the above, the "Collateral").
(b) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Assignor may acquire, or with respect to which any Assignor may obtain rights, at any time during the term of this Agreement.
(c) Notwithstanding clauses (a) and (b) of this Section 1.1, the payment and performance of the Obligations shall not be secured by:
other Loan Documents: (i) any contract, license, permit or franchise that validly prohibits, restricts or requires Guarantor’s grant to the consent of a third party for the creation by such Assignor Lender of a security interest in such contractthe Intellectual Property Collateral shall not prevent Guarantor from granting or restrict Guarantor’s ability to grant, license, permit or franchise (or in any rights or property obtained by such Assignor under such contract, license, permit or franchise) except prior to the extent provided by Sections 9occurrence of an Event of Default, non-406, 9-407, 9-408 exclusive licenses to the Intellectual Property Collateral to its customers in the ordinary course of business; and 9-409 of the UCC; or
(ii) any rights or property Guarantor’s grant 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 Lender of a security interest therein except to in 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 Bank Account shall be excluded not prevent Guarantor from withdrawing funds from the Collateral only to Bank Account in the extent and for ordinary course of business so long as such prohibition, restriction no Event of Default exists 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 Creditor and (y) any right to payment or other monies due under would result from any such contract, license, permit, franchise, rights or property described above shall not be excluded from the withdrawal. All Floating Collateral and shall at all times be subject pledged to the security interest created pursuant Lender in accordance with the terms of this Agreement by way of, Fixed IP Charge, Fixed Bank Account Charge or Floating Charge, shall hereinafter be referred to this Agreementas the “Charged Collateral”.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of its Obligations, each 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 Creditors, a continuing security interest in all of the right, title and interest of such Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such Assignor, or in which or to which such Assignor has any rights, in each case whether now existing or hereafter from time to time 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 cashcash 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;
(iv) all Chattel Paper (including without limitation all Tangible Chattel Paper x) Deposit Accounts, collection accounts, disbursement accounts and lock boxes and all Electronic Chattel Paper)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 Commercial Tort ClaimsChattel Paper;
(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 Domain Names and Trade Secret RightsPromissory Notes;
(vii) all Contracts, together with all Contract Rights arising thereunderInventory;
(viii) all Copyrights;
(ix) all Equipment;
(x) 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;
(xi) all Documents;
(xii) all General Intangibles;
(xiii) all Goods;
(xiv) all Instruments;
(xv) all Inventory;
(xvi) all Investment Property;
(xviiix) all Payment Intangibles (including corporate and other tax refunds);
(x) to the extent relating to, evidencing or governing any of the items referred to in preceding clauses (i) through (ix), all Permits, Documents, General Intangibles (including data processing software but excluding Copyrights, Patents, Trade Secrets and Marks), Instruments, Letter-of-Credit Rights Rights, related letters of credit, guarantees and collateral liens and Commercial Tort Claims or other claims and causes of action, documents of title, customs receipts, insurance, shipping and other documents and other materials related to the foregoing (whether including to the purchase or not the respective letter import of credit is evidenced by a writingany Inventory);
(xviiixi) all Marksto the extent relating to, together with the registrations and right to all renewals thereof, and the goodwill evidencing or governing any of the business of such Assignor symbolized by items referred to in the Markspreceding clauses (i) through (x), all Supporting Obligations;
(xixxii) all Patents;
books and records relating to the items referred to in the preceding clauses (xxi) through (xi) (including all Permits;
(xxi) all Software and all Software licensing rightsbooks, all writings, plans, specifications and schematics, all engineering drawingsdatabases, customer lists, goodwill and licensesrecords, and all recorded data of whether tangible or electronic, which contain any kind or nature, regardless information relating to any of the medium of recording;
items referred to in the preceding clauses (xxiii) all Supporting Obligationsthrough (xi)); and
(xxiiixiii) 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 interest and 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 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 the 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, 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 an Assignor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the U.S. Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of an Assignor or other Margin Stock, in each case, unless the Secured Creditors have made any necessary filings with the Board of Governors of the United States Federal Reserve in connection therewith; provided however, that each applicable Assignor shall provide to the Secured Creditors 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 compliance certificate required to be delivered pursuant to Section 9.01(d) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Creditors have made such necessary filings with the Board of Governors of the United States Federal Reserve in connection therewith; and (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 (the assets described in preceding clauses (i) through (iv) hereof, collectively, the “Excluded Assets”); provided that immediately upon the amendment of the Code to allow the pledge of a greater percentage of the Equity Interests in a Foreign Subsidiary without causing a repatriation (or deemed repatriation) of earnings or adverse tax consequences, the Collateral shall include, and the security interest granted by each Assignor shall attach to, such greater percentage of Equity Interests of each directly owned Foreign Subsidiary of such Assignor to secure all other Obligations.
(c) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Assignor may acquire, or with respect to which any Assignor may obtain rights, at any time during the term of this Agreement.
(c) . Notwithstanding clauses (a) and (b) of this Section 1.1anything herein to the contrary, the payment Assignors make no representations or warranties hereunder, and performance the covenants hereunder shall not apply, in respect of the Obligations shall not be secured by:
(i) any contract, license, permit or franchise 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
(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 Creditor and (y) any right to payment or other monies due under any such contract, license, permit, franchise, rights or property described above shall not be excluded from the Collateral and shall at all times be subject to the security interest created pursuant to this AgreementExcluded 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 its Obligations, each 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 Creditors, a continuing security interest in all of the right, title and interest interest, powers, remedies, privileges and other benefits of such Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such Assignor, or in which or to which such Assignor has any rights, in each case whether now existing or hereafter from time to time acquired:
(i) each and every Account;
(ii) all cash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account;
(iv) all Chattel Paper (including including, without limitation limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(v) all Commercial Tort 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 Domain Names and Trade Secret Rights;
(vii) all Contracts, together with all Contract Rights arising thereunder;
(viii) all Copyrights, 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 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;
(xi) all Documents;
(xii) all General Intangibles;
(xiii) all Goods;
(xiv) all Instruments;
(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 Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the MarksMarks 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 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 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;
(xxii) all Supporting Obligations; and
(xxiii) all Proceeds and products of any and all of the foregoing (all of the above, the "“Collateral"”); provided that (x) no Assignor shall be required to grant a security interest hereunder in (and the term “Collateral” shall not include) (i) any Excluded Account (so long as same remains an “Excluded Account” in accordance with the definition thereof), (ii) any contract, 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, license, agreement, instrument, document, permit or franchise (or in any rights or property obtained by such Assignor under such contract, license, agreement, instrument, document, permit or franchise) 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 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 therein except to the extent provided by Sections 9-406, 9-407, 9-408 and 9-409 of the UCC (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 licenses and permits issued by the FCC, any PUC or any other Governmental Authority to 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 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 (z) (i) except in the circumstances and to the extent provided by Section 9.16 of the Credit Agreement, no Assignor shall be required to grant a security interest hereunder in (and the term “Collateral” shall not include) the Voting Equity Interests of any Exempted Foreign Entity constituting more than 65% of the total combined voting power of all Voting Equity Interests of such Exempted Foreign Entity and (ii) subject to compliance with Section 10.12(b) of the Credit Agreement, no Assignor shall be required to grant a security interest hereunder in (and the 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 Assignor.
(b) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Assignor may acquire, or with respect to which any Assignor may obtain rights, at any time during the term of this Agreement.
(c) Notwithstanding clauses (a) and (b) of this Section 1.1, the payment and performance of the Obligations shall not be secured by:
(i) any contract, license, permit or franchise 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
(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 Creditor and (y) any right to payment or other monies due under any such contract, license, permit, franchise, rights or property described above shall not be excluded from the Collateral and shall at all times be subject to the security interest created pursuant to this Agreement.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of its the Obligations, each Assignor 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 CreditorsParties, a continuing security interest in all of the right, title and interest of such Assignor Grantor in, to and under all of the following personal property and fixtures (and all rights therein) of such AssignorGrantor, or in which or to which such Assignor Grantor has any rights, in each case whether now existing or hereafter from time to time acquiredacquired 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 cashcash 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 including, without limitation limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vvi) all Commercial Tort 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 Claims set forth on Annex E hereto or for which notice is required to Domain Names and Trade Secret Rightsbe provided pursuant to Section 3.1 below;
(vii) all All Contracts, together with all Contract Rights arising thereunder;
(viii) all CopyrightsDocuments;
(ix) all Equipment;
(x) 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 foregoingFixtures;
(xi) all DocumentsGoods;
(xii) all General IntangiblesInstruments;
(xiii) all GoodsIntellectual Property;
(xiv) all InstrumentsPromissory 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 Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the MarksGeneral Intangibles;
(xix) all PatentsPayment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all Software books and records (including all Software licensing rightsbooks, all writings, plans, specifications and schematics, all engineering drawingsdatabases, customer lists, goodwill and licensesrecords, and all recorded data of whether tangible or electronic, which contain any kind or nature, regardless information relating to any of the medium of recordingforegoing);
(xxii) all with respect to each right to payment or performance included in each of the foregoing, any Supporting ObligationsObligation 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 Assignor Grantor may acquire, or with respect to which any Assignor Grantor may obtain rights, at any time during the term of this Agreement.
(cd) Notwithstanding clauses (a) The Liens hereunder are granted as security only and (b) of this Section 1.1, the payment and performance of the Obligations shall not be secured by:
(i) any contract, license, permit or franchise that validly prohibits, restricts or requires subject 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
(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 Administrative Agent or any other Secured Creditor 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 (y) any right to payment or other monies due under any such contract, license, permit, franchise, rights or property described above the covenants hereunder shall not be excluded from apply, in respect of the Collateral and shall at all times be subject to the security interest created pursuant to this AgreementExcluded 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 all of its Applicable Obligations, each 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 relevant Secured CreditorsCreditors as their interests may appear, a continuing security interest in in, all of the right, title and interest of such Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such Assignorfollowing, or in which or to which such Assignor has any rights, in each case whether now existing or hereafter from time to time acquired:
(i) each and every AccountReceivable;
(ii) all cashContracts, 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, Instruments securities and other investments instruments deposited or required to be deposited in the such Cash Collateral Account;
(ivvii) all Chattel Paper (including without limitation all Tangible Chattel Paper Patents and Copyrights and all Electronic Chattel Paper)reissues, renewals or extensions thereof;
(v) all Commercial Tort Claims;
(viviii) all computer programs of such Assignor and all intellectual property rights therein and all other proprietary information of such Assignor, including including, but not limited to Domain Names and to, Trade Secret Secrets Rights;
(vii) all Contracts, together with all Contract Rights arising thereunder;
(viii) all Copyrights;
(ix) all Equipmentinsurance 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 moniesmoneys, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(xi) all Documents;
(xii) all General Intangibles;
(xiii) all Goods;
(xiv) all Instruments;
(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);
(xviii) 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;
(xix) all Patents;
(xx) all Permits;
(xxixvii) 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;
(xxiixviii) all Supporting Obligations; and
(xxiiixix) all Proceeds and products of any and all of the foregoing (all of the above, including this clause (xix), collectively, the "“Collateral"”); provided that notwithstanding the foregoing, (x) the Collateral that secures the Existing Senior Notes Obligations of a Specified Existing Senior Notes Assignor shall be limited to Designated Existing Senior Notes Collateral owned by such Specified Existing Senior Notes Assignor, all of which Collateral shall also ratably secure all other Applicable Obligations of such Specified Existing Senior Notes Assignor, and the Collateral Proceeds with respect to any item of Collateral owned by a Specified Existing Senior Notes Assignor that are to be applied to the Existing 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 Existing Senior Notes Collateral of such Specified Existing Senior Notes Assignor, with such Collateral Proceeds to also be applied ratably to all other Applicable Obligations of such Specified Existing Senior Notes Assignor and (y) the Collateral that secures the RAI Senior Notes Obligations of a Specified RAI Senior Notes Assignor shall be limited to Designated RAI Senior Notes Collateral owned by such Specified RAI Senior Notes Assignor, all of which Collateral shall also ratably secure all other Applicable Obligations of such Specified RAI Senior Notes Assignor, and the Collateral Proceeds with respect to any item of Collateral owned by a Specified RAI Senior Notes Assignor that are to be applied to the RAI 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 RAI Senior Notes Collateral of such Specified RAI Senior Notes Assignor, with such Collateral Proceeds to also be applied ratably to all other Applicable Obligations of such Specified RAI Senior Notes Assignor.
(b) The security interest of Notwithstanding anything contained herein to the Collateral Agent under this Agreement extends to all Collateral which any Assignor may acquirecontrary, or with respect to which any Assignor may obtain rights, at any time during the term of this Agreement.
(c) Notwithstanding clauses (a) and (b) of this Section 1.1, the payment and performance of the Obligations shall not be secured by:
(i) the term “Collateral” as used herein shall not include any contractCopyright, licenseM▇▇▇, permit Patent, Trade Secret, computer program or franchise that validly prohibitsSoftware to the extent such property is subject to a license or agreement the terms of which prohibit an assignment of, restricts or requires the consent of a third party for the creation by such Assignor granting of a security interest in in, any Assignor’s rights thereunder or 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 Assignor’s grant of a security interest therein except pursuant to this Agreement would give any party thereto (other than such Assignor) the right to terminate its obligations thereunder; provided that the foregoing limitation shall not affect, limit, restrict or impair the grant by an Assignor of the security interest pursuant to this Agreement in any account or any money or other amounts due or to become due under any such Copyright, M▇▇▇, Patent, Trade Secret, computer program or Software or such license or agreement governing the same, (ii) the term “Collateral” as used herein shall not include (x) the RJRTH Intercompany Note and any Contract Rights or General Intangibles of the Borrower arising under the Pledge Agreement in its capacity as RJRTH Intercompany Note Creditor, (y) any Equity Interests owned or held by any Assignor and (z) at any time prior to the extent provided by Sections 9-406, 9-407, 9-408 exchange of at least 51% in aggregate principal amount of each series of Existing Senior Notes for Exchange Senior Notes pursuant to the Existing Senior Notes Exchange (and 9-409 the elimination of the UCC; providedlien covenant in the Existing Senior Notes Indenture as consented to by the requisite holders of the Existing Senior Notes), thatall indebtedness and other obligations owing by a Subsidiary of RJRTH to RJRTH or any of its Subsidiaries and (iii) in the case of any sale, notwithstanding assignment, transfer or grant of a security interest hereunder by a Restricted Assignor only, the foregoing term “Collateral” shall not include any Collateral (determined as provided herein without regard to this clause (iii)) of such Restricted Assignor other than (x) Collateral of the type described in this subsection 1.1(cclauses (v), (xvi), (vii), (viii) 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 (xix) 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 Creditor Section 1.1(a) and (y) all other Collateral of the type which may be perfected by the filling of a UCC-1 financing statement in any right to payment or other monies due under any such contract, license, permit, franchise, rights or property described above shall not be excluded from the Collateral and shall at all times be subject to the security interest created pursuant to this Agreementrelevant jurisdiction.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of its Obligations, each 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 Creditors, a continuing security interest in all of the right, title and interest of such Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such Assignor, or in which or to which such Assignor has any rights, in each case whether now existing or hereafter from time to time acquired:
(i) each and every Account;
(ii) all cash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account;
(iv) all Chattel Paper (including including, without limitation limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(v) all Commercial Tort 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 Domain Names and Trade Secret Rights;
(vii) all Contracts, together with all Contract Rights arising thereunder;
(viii) all Copyrights;
(ix) all Equipment;
(x) 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;
(xi) all Documents;
(xii) all General Intangibles;
(xiii) all Goods;
(xiv) all Instruments;
(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);
(xviiixix) 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;
(xix) Marks and all Patentscauses of action arising prior to or after the date hereof for infringement of any of the Marks or unfair competition regarding the same;
(xx) all Notes;
(xxi) all 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;
(xxii) all Permits;
(xxixxiii) all Security Entitlements and other Investment Property (to the extent not already covered by another clause of this Section 1.1(a));
(xxiv) 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;
(xxiixxv) all Supporting Obligations; and
(xxiiixxvi) all Proceeds and products of any and all of the foregoing (all of the above, the "“Collateral"”).
(b) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Assignor may acquire, or with respect to which any Assignor may obtain rights, at any time during the term of this Agreement.
(c) Notwithstanding clauses (a) and (b) of this Section 1.1, the payment and performance of the Obligations shall not be secured by:
(i) any contract, license, permit or franchise 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
(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 Creditor and (y) any right to payment or other monies due under any such contract, license, permit, franchise, rights or property described above shall not be excluded from the Collateral and shall at all times be subject to the security interest created pursuant to this Agreement.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of its the Secured Obligations, each Assignor 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 CreditorsParties, a continuing security interest in all of the right, title and interest of such Assignor Grantor in, to and under all of the following personal property and fixtures (and all rights therein) of such AssignorGrantor, or in which or to which such Assignor Grantor has any rights, in each case whether now existing or hereafter from time to time acquired:acquired (collectively, as listed below in this Section 1.1, the “Collateral”):
(i) each and every Account;
(ii) all cash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account;
(iv) all Chattel Paper (including including, without limitation limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(v) all Commercial Tort Claims;
(vi) all computer programs and Software of such Assignor Grantor and all intellectual property rights Intellectual Property therein and all other proprietary information of such AssignorGrantor, including but not limited to Domain Names and Trade Secret Rights;
(vii) all Contracts, together with all Contract Rights arising thereunder;
(viii) all Copyrights;
(ix) all Equipment;
(x) all Deposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor Grantor with any Person and all monies, securities, Instruments and other investments deposited or required to be deposited in any of the foregoing;
(xi) all Documents;
(xii) all General Intangibles;
(xiii) all Goods;
(xiv) all Instruments;
(xv) all Inventory;
(xvi) all Financial Assets and Investment Property;
(xvii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xviii) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor Grantor symbolized by the MarksMarks 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 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 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;
(xxii) all Supporting Obligations; and
(xxiii) all Proceeds and products of any and all of the foregoing (all of foregoing; provided that the above, the "Collateral shall not include any Excluded Collateral").
(b) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Assignor Grantor may acquire, or with respect to which any Assignor Grantor may obtain rights, at any time during the term of this Agreement.
(c) Notwithstanding clauses (a) and (b) of this Section 1.1, the payment and performance of the Obligations shall not be secured by:
(i) any contract, license, permit or franchise 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
(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 Creditor and (y) any right to payment or other monies due under any such contract, license, permit, franchise, rights or property described above shall not be excluded from the Collateral and shall at all times be subject to the security interest created pursuant to this Agreement.
Appears in 1 contract
Sources: Pledge and Security Agreement (Affinity Guest Services, LLC)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of its the Obligations, each Assignor 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 CreditorsParties, a continuing security interest in all of the right, title and interest of such Assignor Grantor in, to and under all of the following personal property and fixtures (and all rights therein) of such AssignorGrantor, or in which or to which such Assignor Grantor has any rights, in each case whether now existing or hereafter from time to time acquiredacquired 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 cashcash 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;
4. all (ivx) 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;
5. all Chattel Paper (including including, without limitation limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(v) 6. all Commercial Tort ClaimsClaims set forth on Annex E hereto or for which notice is required to be provided pursuant to Section 3.1 below;
(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 Domain Names and Trade Secret Rights;
(vii) 7. all Contracts, together with all Contract Rights arising thereunder;
(viii) 8. all CopyrightsDocuments;
(ix) 9. all Equipment;
(x) 10. 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 foregoingFixtures;
(xi) all Documents;
(xii) all General Intangibles;
(xiii) 11. all Goods;
(xiv) 12. all Instruments;
(xv) 13. all Intellectual Property;
14. all Promissory Notes;
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 Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the MarksGeneral Intangibles;
19. all Payment Intangibles (xix) all Patentsincluding corporate and other tax refunds);
(xx) 20. all Permits;
21. all books and records (xxi) including all Software and all Software licensing rightsbooks, all writings, plans, specifications and schematics, all engineering drawingsdatabases, customer lists, goodwill and licensesrecords, and all recorded data of whether tangible or electronic, which contain any kind or nature, regardless information relating to any of the medium of recordingforegoing);
(xxii) all 22. with respect to each right to payment or performance included in each of the foregoing, any Supporting ObligationsObligation 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) The Notwithstanding anything herein to the contrary, in no event shall the security interest of the Collateral Agent interests and Liens granted under this Agreement extends to all Collateral which any Assignor may acquireSection 1.1(a) hereof attach to, or with respect to which any Assignor may obtain rights, at any time during and the term of this Agreement.
“Collateral” (cand the component terms thereof) Notwithstanding clauses (a) and (b) of this Section 1.1, the payment and performance of the Obligations shall not be secured by:
include, (i) any contractproperty, 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, permit or franchise 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, licenseagreement or other document, permit or franchise (or in B) a breach of 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 law or regulation applicable to such rights or property prohibits, restricts or requires the consent of a third party for which prohibits the creation of a security interest therein except thereunder (other than to the extent provided by Sections that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 9-406, 9-9 407, 9-408 and or 9-409 of the UCC; provided, that, notwithstanding the foregoing in this subsection 1.1(c), UCC (xor any successor provision or provisions) of 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 relevant jurisdiction or third party consent requirement continues validly to prohibit, restrict any other then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a third party for Governmental Authority to permit the creation 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 security interest, and upon the expiration, termination property or other lifting rights that does not result in any of such prohibitionthe consequences specified in clause (A), restriction (B) or third party consent requirement(C) above; (ii) the Pledge Agreement Collateral, including any asset of a Grantor excluded from the contractsPledge Agreement Collateral pursuant to the proviso to Section 3.1 of the Pledge Agreement or the corresponding provision of any other Pledge Agreement, licensesas applicable; (iii) any treasury stock of a Grantor or other Margin Stock, permitsin each case, franchises, rights and properties unless the Secured Parties have made any necessary filings with the FRB in connection therewith and the rights therein shall automatically be included in the Collateral, without further action on the part of any Assignor, 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 any other 6.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Creditor 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 right to payment or other monies due under account of the type described in clause (iv) not otherwise constituting a Deposit Account; (v) any such contract, license, permit, franchise, rights or property described above shall not be excluded from the Collateral Vehicles and shall at all times be 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 created pursuant therein would impair the validity or enforceability of such application under applicable federal law (other than to this Agreement.the extent such rights can be perfected by the filing 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 its Obligations, each 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 Creditors, a continuing security interest in and a lien on all of the right, title and interest of such Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such Assignor, or in which or to which such Assignor has any rights, in each case whether now existing or hereafter from time to time acquired:
(i) each and every Account;
(ii) all cash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account;
(iv) all Chattel Paper (including including, without limitation limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(v) all Commercial Tort 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 Domain Names and Trade Secret Rights;
(vii) all Contracts, together with all Contract Rights arising thereunder;
(viii) all Copyrights;
(ix) all Equipment;
(x) 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;
(xi) all Documents;
(xii) all General Intangibles;
(xiii) all Goods;
(xiv) all Instruments;
(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 Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the MarksMarks 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 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 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;
(xxii) all Supporting Obligations; and
(xxiii) all Proceeds and products of any and all of the foregoing (all of the above, the "“Collateral"”).
(b) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Assignor may acquire, or with respect to which any Assignor may obtain rights, at any time during the term of this Agreement.
(c) . Notwithstanding clauses (a) and (b) of this Section 1.1anything to the contrary contained herein, the payment and performance of the Obligations term “Collateral” shall not be secured by:
include, and the security interest granted under this Agreement shall not attach to: (A) any lease, license, Permit, contract or agreement to which any Assignor is a party to the extent (but only to the extent) that the grant of such security interest shall constitute or result in (i) the abandonment, invalidation or unenforceability of any contractright, title or interest of any Assignor therein or (ii) a breach or termination pursuant to the terms of, or a default under, any such lease, ‘license, permit Permit or franchise that validly prohibitsagreement (other than, restricts or requires the consent of a third party for the creation by such Assignor of a security interest in such contracteither case, license, permit or franchise (or in any rights or property obtained by such Assignor under such contract, license, permit or franchisex) except to the extent provided by Sections that any such term would be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 and or 9-409 of the UCC; or
UCC (iior any successor provision or provisions) of any rights relevant jurisdiction or property any other applicable law (including any Bankruptcy Code) or principles of equity or (y) to the extent that the other party has consented to the assignment thereof pursuant to the terms hereof or pursuant to an assignment for security purposes generally or such prohibition otherwise no longer exists), (B) leasehold interests in real property with respect to which any valid and enforceable law, statute Assignor is a tenant or regulation applicable subtenant to such rights or property prohibits, restricts or requires the consent of a third party for the creation of extent that a security interest therein cannot be perfected solely by filing a UCC-1 financing statement (or similar instrument) under the UCC of any applicable jurisdiction, (C) any trademark applications filed on an intent-to-use basis (until the issuance of a registration or the filing of a statement of use for such application), (D) except in the circumstances and to the extent provided by Sections 9-406, 9-407, 9-408 and 9-409 Section 9.17 of the UCC; providedCredit Agreement, that, notwithstanding the foregoing Voting Equity Interests (as defined in this subsection 1.1(c)the Pledge Agreement) of any Exempted Foreign Entity (as defined in the Pledge Agreement) in excess of 65% of the total combined voting power of all classes of Voting Equity Interests of any Exempted Foreign Entity, (xE) any such contract, license, permit, franchise, rights and property described above shall be excluded from the Collateral only motor vehicles covered by certificates of title or ownership to the extent and that a security interest therein cannot be perfected solely by filing a UCC-1 financing statement (or similar instrument) under the UCC of any applicable jurisdiction, (F) property or assets owned by an Assignor that are subject to a Permitted Lien described in Section 10.01(vi) or (vii) of the Credit Agreement for so long as such prohibitionPermitted Lien is in effect and the Indebtedness secured thereby otherwise prohibits any other Liens thereon, restriction or third party consent requirement continues validly but only for so long as such prohibition exists and is effective and valid, (G) Excluded Deposit Accounts and (H) Proceeds and products from any and all of the assets described in the foregoing clauses (A) through (G), unless such Proceeds and products would otherwise constitute Collateral securing the Obligations in the absence of this sentence. Notwithstanding anything herein 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 requirementcontrary, the contracts, licenses, permits, franchises, rights lien and properties security interest granted pursuant to this Agreement and the rights therein shall automatically be included in the Collateral, without further action on the part exercise of any Assignor, the Collateral Agent right or any other Secured Creditor and (y) any right to payment or other monies due under any such contract, license, permit, franchise, rights or property described above shall not be excluded from the Collateral and shall at all times be remedy hereunder are subject to the security interest created pursuant to provisions of the Intercreditor Agreement at any time the Intercreditor Agreement is in effect. In the event of any conflict between the terms 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.
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of its Obligations, each 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 Creditors, a continuing security interest in all of the right, title and interest of such Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such Assignor, or in which or to which such Assignor has any rights, in each case whether now existing or hereafter from time to time acquiredacquired 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 cashcash 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;
(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);
(vvi) all Commercial Tort 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 Claims set forth on Annex E hereto or for which notice is required to Domain Names and Trade Secret Rightsbe provided pursuant to Section 3.1 below;
(vii) all Contracts, together with all Contract Rights arising thereunder;
(viii) all CopyrightsDocuments;
(ix) all Equipment;
(x) 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 foregoingFixtures;
(xi) all DocumentsGoods;
(xii) all General IntangiblesInstruments;
(xiii) all GoodsIntellectual Property;
(xiv) all InstrumentsPromissory 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 Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the MarksGeneral Intangibles;
(xix) all PatentsPayment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all Software books and records (including all Software licensing rightsbooks, all writings, plans, specifications and schematics, all engineering drawingsdatabases, customer lists, goodwill and licensesrecords, and all recorded data of whether tangible or electronic, which contain any kind or nature, regardless information relating to any of the medium of recordingforegoing);
(xxii) all with respect to each right to payment or performance included in each of the foregoing, any Supporting ObligationsObligation 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 an Assignor excluded from the Pledge Agreement Collateral pursuant to the proviso to Section 3.1 of the U.S. Pledge Agreement or the corresponding provision of any other Pledge Agreement, as applicable; (iii) any treasury stock of an Assignor or other Margin Stock, in each case, unless the Secured Creditors have made any necessary filings with the Board of Governors of the United States Federal Reserve in connection therewith and the respective Assignor shall have provided the respective Secured Creditors with an executed Form FR U-1 or Form FR G-3, as applicable; provided however, that each applicable Assignor shall provide to the Secured Creditors 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 9.01(a) or 9.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the extent the Secured Creditors have made such necessary filings with the Board of Governors of the United States Federal Reserve in connection therewith and the respective Assignor shall have provided the respective Secured Creditors with an executed Form FR U-1 or Form FR G-3, as applicable; and (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; (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 Assignor may acquire, or with respect to which any Assignor may obtain rights, at any time during the term of this Agreement.
(cd) Notwithstanding clauses (a) The Liens hereunder are granted as security only and (b) of this Section 1.1, the payment and performance of the Obligations shall not be secured by:
(i) any contract, license, permit or franchise that validly prohibits, restricts or requires subject 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
(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 Administrative Agent or any other Secured Creditor to, or transfer or in any way affect or modify, any obligation or liability of any Assignor with respect to any of the Collateral or any transaction in connection therewith.
(e) Notwithstanding anything herein to the contrary, the Assignors make no representations or warranties hereunder, and (y) any right to payment or other monies due under any such contract, license, permit, franchise, rights or property described above the covenants hereunder shall not be excluded from apply, in respect of the Collateral and shall at all times be subject to the security interest created pursuant to this AgreementExcluded 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 its the Obligations, each Assignor 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 Creditors, a continuing security interest in in, all of the right, title and interest of such Assignor Grantor in, to and under all of the following personal property and fixtures (and all rights therein) of such Assignoreach Grantor, or in which or to which such Assignor has any rights, in each case whether now existing or hereafter from time to time acquired:arising or acquired and wherever located (collectively, the “Collateral”):
(i) all Accounts, including, without limitation, each and every AccountAccount Receivable;
(ii) all cashGoods;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral AccountInventory;
(iv) all Chattel Paper (including without limitation all Tangible Chattel Paper and all Electronic Chattel Paper)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) all Securities Accounts, together with all Financial Assets credited therein from time to time, and all Financial Assets, monies, securities, cash and other property held therein or credited thereto;
(xi) all Investment Property;
(xii) all Fixtures;
(xiii) all As-Extracted Collateral, including, without limitation, all Minerals;
(xiv) all General Intangibles, including, but not limited to, all Contract Rights;
(xv) all Commercial Tort 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 Domain Names and Trade Secret Rights;
(vii) all Contracts, together with all Contract Rights arising thereunder;
(viii) all Copyrights;
(ix) all Equipment;
(x) 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;
(xi) all Documents;
(xii) all General Intangibles;
(xiii) all Goods;
(xiv) all Instruments;
(xv) all Inventory;
(xvi) all Investment Intellectual Property;
(xvii) all Letter-of-Letter of Credit Rights (whether or not the respective letter of credit is evidenced by a writing)Rights;
(xviii) all Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the MarksPayment Intangibles;
(xix) all PatentsPromissory Notes;
(xx) all PermitsSupporting Obligations;
(xxi) 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 recordingPermits;
(xxii) all Supporting Obligations; andother items, 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;
(xxiii) all additions, 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 (all of the above, the "Collateral")foregoing.
(b) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Assignor may acquire, or with respect to which any Assignor may obtain rights, at any time during the term of this Agreement.
(c) Notwithstanding clauses (a) and (b) of this Section 1.1, the payment and performance of the Obligations shall not be secured by:
(i) any contract, license, permit or franchise 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
(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 Creditor and (y) any right to payment or other monies due under any such contract, license, permit, franchise, rights or property described above shall not be excluded from the Collateral and shall at all times be subject to the security interest created pursuant to this Agreement.
Appears in 1 contract
Sources: Pledge and Security Agreement (American Greetings Corp)
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of its Obligations, each 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 Creditors, a continuing security interest in all of the right, title and interest of such Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such Assignor, or in which or to which such Assignor has any rights, in each case whether now existing or hereafter from time to time acquiredacquired 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 cashcash 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;
(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);
(vvi) all Commercial Tort 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 Claims set forth on Annex E hereto or for which notice is required to Domain Names and Trade Secret Rightsbe provided pursuant to Section 3.1 below;
(vii) all Contracts, together with all Contract Rights arising thereunder;
(viii) all CopyrightsDocuments;
(ix) all Equipment;
(x) 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 foregoingFixtures;
(xi) all DocumentsGoods;
(xii) all General IntangiblesInstruments;
(xiii) all GoodsIntellectual Property;
(xiv) all InstrumentsPromissory 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 Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor symbolized by the MarksGeneral Intangibles;
(xix) all PatentsPayment Intangibles (including corporate and other tax refunds);
(xx) all Permits;
(xxi) all Software books and records (including all Software licensing rightsbooks, all writings, plans, specifications and schematics, all engineering drawingsdatabases, customer lists, goodwill and licensesrecords, and all recorded data of whether tangible or electronic, which contain any kind or nature, regardless information relating to any of the medium of recordingforegoing);
(xxii) all with respect to each right to payment or performance included in each of the foregoing, any Supporting ObligationsObligation 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) The Notwithstanding anything herein to the contrary, in no event shall the security interest of the Collateral Agent interests and Liens granted under this Agreement extends to all Collateral which any Assignor may acquireSection 1.1(a) hereof attach to, or with respect to which any Assignor may obtain rights, at any time during and the term of this Agreement.
“Collateral” (cand the component terms thereof) Notwithstanding clauses (a) and (b) of this Section 1.1, the payment and performance of the Obligations shall not be secured by:
include, (i) any contractproperty, 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, permit or franchise 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, licenseagreement or other document, permit or franchise (or in B) a breach of 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 law or regulation applicable to such rights or property prohibits, restricts or requires the consent of a third party for which prohibits the creation of a security interest therein except thereunder (other than to the extent provided by Sections that any such term specified in clause (A) or (B) above is rendered ineffective pursuant to Section 9-406, 9-9 407, 9-408 and or 9-409 of the UCC; provided, that, notwithstanding the foregoing in this subsection 1.1(c), UCC (xor any successor provision or provisions) of 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 relevant jurisdiction or third party consent requirement continues validly to prohibit, restrict any other then-applicable law (including any applicable bankruptcy laws) or principles of equity) or (C) require the consent of a third party for Governmental Authority to permit the creation 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 security interest, and upon the expiration, termination property or other lifting rights that does not result in any of such prohibitionthe consequences specified in clause (A), restriction (B) or third party consent requirement(C) above; (ii) the Pledge Agreement Collateral, including any asset of an Assignor excluded from the contractsPledge Agreement Collateral pursuant to the proviso to Section 3.1 of the U.S. Pledge Agreement or the corresponding provision of any other Pledge Agreement, licensesas applicable; (iii) any treasury stock of an Assignor or other Margin Stock, permitsin each case, franchises, rights and properties unless the Secured Creditors have made any necessary filings with the Board of Governors of the United States Federal Reserve in connection therewith and the rights therein respective Assignor shall automatically be included in have provided the Collateralrespective Secured Creditors with an executed Form FR U-1 or Form FR G-3, without further action on as applicable; provided however, that each applicable Assignor shall provide to the part Secured Creditors 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 Assignorfinancial statements required to be delivered pursuant to Section 9.01(a) or 9.01(b) of the Credit Agreement and, thereafter, such Margin Stock shall constitute Collateral to the Collateral Agent extent the Secured Creditors have made such necessary filings with the Board of Governors of the United States Federal Reserve in connection therewith and the respective Assignor shall have provided the respective Secured Creditors with an executed Form FR U-1 or any other Secured Creditor Form FR G-3, as applicable; and (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; (v) any right to payment or Vehicles and other monies due under any such contract, license, permit, franchise, rights or property described above shall not be excluded from the Collateral and shall at all times be 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 created pursuant therein would impair the validity or enforceability of such application under applicable federal law (other than to this Agreementthe 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”).
Appears in 1 contract
Sources: Security Agreement
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 all of its ObligationsObligations (and hereby confirms, each Assignor does hereby assign reaffirms and transfer unto restates the Collateral Agent, and does hereby pledge and prior grant thereof to the Collateral Original Administrative Agent, for itself and Original Lenders pursuant to the benefit Original Credit Agreement in favor of the Administrative Agent and the Secured Creditors), a continuing security interest in all of the right, title and interest of such Assignor the Debtor in, to and under all of the following personal property and fixtures (and all rights therein) of such Assignorthe Debtor, or in which or to which such Assignor the Debtor has any rights, in each case whether now existing or hereafter from time to time acquired, including each of the following (collectively, the “Collateral”), except to the extent any such property constitutes Excluded Collateral:
(i) each and every Accountall Accounts;
(ii) all cashAs-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;
(ivv) all Chattel Paper (including including, without limitation limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(vvi) all Subject Commercial Tort Claims;
(vivii) all computer programs of such Assignor the Debtor and all intellectual property rights therein and all other proprietary information of such Assignorthe Debtor, including but not limited to including, without limitation, Domain Names and Trade Secret Rights;
(vii) all Contracts, together with all Contract Rights arising thereunder;
(viii) all Copyrights;
(ix) all Equipment;
(x) all Deposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such Assignor 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 Documents;
(xi) all DocumentsEquipment (including all Chassis);
(xii) all General Intangibles, including, without limitation, all Payment Intangibles;
(xiii) all Goods;
(xiv) all Instruments;
(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 Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such Assignor the Debtor symbolized by the Marks;
(xixxviii) all Patents;
(xxxix) all Permits;
(xxixx) 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;
(xxi) all Supporting Obligations (other than Letter-of-Credit Rights);
(xxii) all Supporting Obligations; andbooks, 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 any Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon;
(xxiii) all other personal property of any kind or type whatsoever; and
(xxiv) to the extent not otherwise included, all Accessions, Proceeds and products of any and all of the foregoing foregoing, and of any Excluded Collateral (all of to the aboveextent such Accessions, the "Proceeds and products are not also Excluded Collateral").
(b) The Notwithstanding anything to the contrary herein, the term “Collateral” shall not include, and the security interest of the Collateral Agent granted under this Agreement extends to all Collateral which any Assignor may acquire, or with respect to which any Assignor may obtain rights, at any time during shall not attach (in the term case of this Agreement.
(c) Notwithstanding clauses (ai) and (bviii) of this Section 1.1, the payment and performance of the Obligations shall not be secured by:
(i) any contract, license, permit or franchise 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 below solely to the extent provided by Sections 9-406, 9-407, 9-408 and 9-409 of the UCC; or
(iiexistence of the restrictions set forth in such clauses) 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 following (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 “Excluded Collateral, without further action on the part of any Assignor, the Collateral Agent or any other Secured Creditor and (y) any right to payment or other monies due under any such contract, license, permit, franchise, rights or property described above shall not be excluded from the Collateral and shall at all times be subject to the security interest created pursuant to this Agreement.”):
Appears in 1 contract
Grant of Security Interests. (a) As security for the prompt and complete payment and performance when due of all of its Obligations, each 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 Creditors, a continuing security interest in all of the right, title and interest of such Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such Assignor, or in which or to which such Assignor has any rights, in each case whether now existing or hereafter from time to time acquired:
(i) each and every Account;
(ii) all cash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account;
(iv) all Chattel Paper (including including, without limitation limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(v) all Commercial Tort 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 Domain Names and Trade Secret Rights;
(vii) all Contracts, together with all Contract Rights arising thereunder;
(viii) all Copyrights;
(ix) all Equipment;
(x) 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;
(xi) all Documents;
(xii) all General Intangibles;
(xiii) all Goods;
(xiv) all Instruments;
(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 Marks, 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 Patents;
(xx) all Permits;
(xxi) 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;
(xxii) all Supporting Obligations; and
(xxiii) all Proceeds and products of any and all of the foregoing (all of the above, the "“Collateral"”); provided that, notwithstanding anything to the contrary contained in this Agreement, the term “Collateral” as used herein shall not include (x) any Limited Liability Company Interests (as defined in the Pledge Agreement), Partnership Interests (as defined in the Pledge Agreement), or Vitritek Interests (as defined in the Pledge Agreement) unless, and in such case only to the extent 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 (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, the “Subject Patents”), to the extent that (and only for so long as) any agreement among any Assignor and any other Person with rights to such Patents prohibits the granting of, or requires the consent of such other Person in connection with the granting of, a security interest in such Patents (any such agreement, a “Subject Patent Agreement”).
(b) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any Assignor may acquire, or with respect to which any Assignor may obtain rights, at any time during the term of this Agreement.
(c) Notwithstanding clauses (a) and (b) of this Section 1.1, the payment and performance of the Obligations shall not be secured by:
(i) any contract, license, permit or franchise 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
(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 Creditor and (y) any right to payment or other monies due under any such contract, license, permit, franchise, rights or property described above shall not be excluded from the Collateral and shall at all times be subject to the security interest created pursuant to this Agreement.
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 all of its Obligations, each 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 Creditors, a continuing security interest in all of the right, title and interest of such Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such Assignor, or in which or to which such Assignor has any rights, in each case whether now existing or hereafter from time to time acquired:
(i) each and every Account;
(ii) all cashcash and Cash 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;
(iv) all Chattel Paper (including including, without limitation limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(v) all Commercial Tort 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 Domain Names and Trade Secret Rights;
(vii) all ContractsSoftware, together with all Contract Rights arising thereunder;
(viii) all Copyrights;
(ix) all Equipment;
(x) 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;
(xi) all Documents;
(xii) all General Intangibles;
(xiii) all Goods;
(xiv) all Instruments;
(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 Marks, 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 Patents;
(xx) all Permits;
(xxi) 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;
(vii) Contracts, together with all Contract Rights arising thereunder;
(viii) all Copyrights;
(ix) 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;
(x) all Documents;
(xi) all Domain Names;
(xii) all Equipment;
(xiii) all General Intangibles;
(xiv) all Goods;
(xv) all Instruments;
(xvi) all Inventory;
(xvii) all Investment Property;
(xviii) all Letter-of-Credit Rights (whether or not the respective letter of credit is evidenced by a writing);
(xix) all Marks;
(xx) all Patents;
(xxi) all Permits;
(xxii) all Supporting Obligations;
(xxiii) all Trade Secret Rights; and
(xxiiixxiv) all Proceeds and products of any and all of the foregoing and any item excluded pursuant to the next succeeding sentence (except to the extent such proceeds would independently be excluded pursuant to said sentence) (all of the above, the "“Collateral"”). Notwithstanding anything to the contrary contained above, in no event shall the Collateral include, and no Assignor shall be deemed to have granted a security interest (unless and until as further provided below) in (a) any lease, license, contract, property rights or 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 (i) the abandonment, invalidation or unenforceability of same or (ii) in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement (other than to the extent that any such term in the case of preceding clause (i) or (ii), as applicable) would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law (including the Bankruptcy Code) or principles of equity), provided, however, that the security interests hereunder shall attach (x) immediately to any portion of such lease, license, contract, property rights or agreement that does not result in any of the consequences specified in (i) or (ii) and (y) to any property or assets described above in this clause (a) on the first date upon which the circumstances described in preceding clauses (i) and/or (ii) (as relevant) no longer exist with respect thereto, or (b) 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.
(b) The security interest of the First-Lien Collateral Agent under this Agreement extends to all Collateral which any Assignor may acquire, or with respect to which any Assignor may obtain rights, at any time during the term of this Agreement.
(c) Notwithstanding clauses (a) and (b) of this Section 1.1anything herein to the contrary, the payment and performance of the Obligations shall not be secured by:
(i) any contract, license, permit or franchise 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
(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, relative 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 remedies 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 First-Lien Collateral Agent or any other Secured Creditor and (y) any right to payment or other monies due under any such contract, license, permit, franchise, rights or property described above shall not be excluded from the Collateral and shall at all times be subject to and governed by the security interest created pursuant to this 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 Intercreditor Agreement, the Intercreditor Agreement shall control at any time the Intercreditor Agreement is in effect.
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 all of its Obligations, each the 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 Creditors, a continuing security interest in all of the right, title and interest of such the Assignor in, to and under all of the following personal property and fixtures (and all rights therein) of such the Assignor, or in which or to which such the Assignor has any rights, in each case whether now existing or hereafter from time to time acquired existing or hereafter from time to time acquired existing or hereafter from time to time acquired:
(i) each and every Account;
(ii) all cash;
(iii) the Cash Collateral Account and all monies, securities, Instruments and other investments deposited or required to be deposited in the Cash Collateral Account;
(iv) all Chattel Paper (including including, without limitation limitation, all Tangible Chattel Paper and all Electronic Chattel Paper);
(v) all Commercial Tort ClaimsClaims (including all Commercial Tort Claims described in Annex H hereto);
(vi) all computer programs of such the Assignor and all intellectual property rights therein and all other proprietary information of such the Assignor, including but not limited to Domain Names and Trade Secret Rights;
(vii) all Contracts, together with all Contract Rights arising thereunder;
(viii) all Copyrights;
(ix) all Equipment;
(x) all Deposit Accounts and all other demand, deposit, time, savings, cash management, passbook and similar accounts maintained by such the 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 Documents;
(xii) all General Intangibles;
(xiii) all Goods;
(xiv) all Instruments;
(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 Marks, together with the registrations and right to all renewals thereof, and the goodwill of the business of such the Assignor symbolized by the Marks;
(xix) all Patents;
(xx) all Permits;
(xxi) 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;
(xxii) all Supporting Obligations; and
(xxiii) all Proceeds and products of any and all of the foregoing (all of the above, including this clause (xxiii), the "Collateral").
(b) The security interest of the Collateral Agent under this Agreement extends to all Collateral which any the Assignor may acquire, or with respect to which any the Assignor may obtain rights, at any time during the term of this Agreement.
(c) Notwithstanding clauses (a) and (b) of this Section 1.1, the payment and performance of the Obligations shall not be secured by:
(i) any contract, license, permit or franchise 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
(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 Creditor and (y) any right to payment or other monies due under any such contract, license, permit, franchise, rights or property described above shall not be excluded from the Collateral and shall at all times be subject to the security interest created pursuant to this Agreement.
Appears in 1 contract
Sources: Security Agreement (Town Sports International Holdings Inc)